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HomeMy WebLinkAbout2358 759 Route 28 DecisionTOWN OF YARMOUTH BOARD OF APPEALS t FILED WITH TOWN CLERK: Vtl T PETITIONER: The Yarmouth, Inc. RFC „r_n �Y 759 Main Street 9 South Yarmouth, MA '86 OCT 17 P3 :18 Dh Hearing Date: 9/11/86 Petition No: 2358 DECISION T�I t�C I'HOiITIi The petitioner requested a special permit tbYa"llowl''theico`nvethsion of The Yarmouth Motel to a condominium form of ownership to be known as The Yarmouth Condominium to be sold and occupied on an interval ownership or timeshare basis. Located at 759 Main Street So. Yarmouth, _ also ahown'on Assessor's Map927 Lot X1. Members of Board of Appeals present: Donald Henderson, David Oman, Fritz Lindquist, Judith Sullivan, Leslie Campbell. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in The Register on 8/28/86 and 9/11/86, the hearing was opened and held on the date first above written. The following appeared in favor of the petition: Atty. Murphy; Mrs. Symanski; Planning Board The following appeared in opposition: REASON FOR DECISION: This petition was filed by Petitioner, who owns the locus premises, generally referred to as the Yarmouth Motel. The subject property consists of approximately 61,683 square feet, and is situated on the south side of Route 28, South Yarmouth. The property consists of two (2) buildings, containing twenty-four (24) motel -type units. There are a total of three (3) kitchen. facilities contained within the various units. The Petitioner seeks a special permit to change the premises to a Condominium form of ownership pursuant to f104.4, so that after conversion there will he n total of twenty-four (24) units as shown on the plans hereinafter described. The Petitioner has appeared before the Site Plan Review Committee, and we have a list of 1 their comments and recommendations, all which appear to have been adhered to by the Petitioner. In determining whether to issue a Special Permit under §103.2, this Board must determine that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town. Specifically, as to i104.4, the Board must find that there is no change in use, that the condominium documents define the use and provide proper management authority to comply with public health and safety requirements. As to 6104.3.2, the Board must find that the change will not be substantially more detrimental to the neighborhood than the existing non -conforming use. In reviewing Petitionr's proposal, we note the following: A. The premises will be operated on a seasonal basis from February 15th to December 15th of each year; B. The units will be upgraded and new landscaping provided thus definitely improving the visual aspects of this site; C. That fully engineered plans and specifications to bring the septic system up to present Town and State standards, if the present system fails have been prepared; -2- Petition 02358 D. The condominium documentation provides fora clear definition of the uses, and provides authority for the Condominium Trustees to comply with health and safety requirements, as suggested by the Site Plan Review Committee: E. Interval ownership, or time sharing, ensures that the premises will continue to operate as a motel use with the occupants of each unit changing on a weekly or bi-weekly basis; Based on the foregoing, this Board determines that the requirements as setforth in $103.2 and 1104.3.2 have been satisfied and that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the character of the neighborhood or town, and that the requirements of f 104.4 relative to conversion to condominium form of ownership have been met. Based on the foregoing, the Board makes the following decision: 1. To permit the conversion of said property to a condominium form of ownership with said property to consist of twenty-four (24) units within the main motel structure, three units with kitchen facilities as described at the hearing to include refrigerator, sink, and two burner stove all as shown on plans hereinafter described and further that said Condominium is to be sold and occupied on an interval ownerhip or timeshare basis. 2. To permit the conversion of said property to a condominium form of ownership pursuant to 1 104.4, to be operated and sold on a time-share or interval ownership basis. 3. The parking required is 27 spaces as shwon on the plans hereinafter described. This decision is specifically predicated upon the following restrictions and condidition: ' 1. That the twenty-four (24) units, being condominium units i through 25, are in no event to be used more than forty (40) weeks per year and may not be occupied during the period frort December 16th•through February 14th of each winter. This restriction shall be setforth in the Master Deed, and any violation of the same, will render this Special Permit void. t 2. Delete parking spaces numbered 1,2 and 3 as shown on the hereinafter described plan and in their place as well as along Route 28 install. a twenty (20') foot wide buffer in accordance with present by-law requirements, said work to he completed by March 15. 1987. 3. The repair and maintenance of the sewerage system, as well as use and maintenance of the pool, must be specifically the responsibility of the Trustees of the Condominium Trust, who shall be specifically empowered to implement this ::ec•tion. 4. That all improvements made on the site must comply with the following described plans which have been filed with the Yarmouth Board of Appeals: "Plan of Land in Yarmouth as surveyed for Robert .1. Ostellino etu:c Scale I IN.- 30 FT. July, 1986 William N. Rogers, Registered Civil Engineers 6 Land Surveyors, Off Cemetery Road, Provincetown, MA. 5. No person is to occupy a unit for more than two (2) consecutive weeks at a time. 6. The unimproved area to the south side of the premises between the motel building and Pawkannawkut Drive as well as land of Walter M. Szymanski is to remain in its natural state. 7. A septic system designed in accordance with the provisions of Title V and acceptable to the Board of Health to serve the premises is to be installed by March 15, 1987. Members of the Board voting in favor: Donald Henderson, David Oman, Fritz Lindquist, Judith Sullivan, Leslie Campbell. Therefore, the petition for approval and/or special permit is granted. No permit is issued until twenty (20) days from date of filing decision with the Town Clerk. Fritz Lindquist, Clerk wVN of YARMJUTH BOARD OF AFFLALS op O"NERsRLN1tftE•iRRcw! " T J. OSTELLINO and HENRIET OSTELLINO ADDRESS: P.O. Box 123, Pittsfield, Massachusetts '86 SEP —4 P314 L PETITIONERS NAN.E: THE YARMOUM, INC. APPEALS I Agrt HEARING DATE ?-a_416 iU j \"."'Ir, 11-11 TOWN CLcitn "ADPEFs8f.iat 759 Main Street, South Yarmouth, Massachusetts BOARD OF APPEALS, YMIJUTH, !SASS. This petition when completed and signed must be filed with the Board of Select- men, Yarmouth, Massachusetts, along with the fee of s 75.00 DATE: 0J161986 PAID: !' 4.a 1. XX We, hereby appeal from decision of the Building Inspector and petition your board for a public hearing on the action checked below: 1. Review refusal of Building Inspector to grant permit. f'I'" 2. Decision of Selectmen. 2. M we, hereby request the action checked below: 1. variance from requirements of Yarmouth Zoning By -Law. 2. Approval of the Board of Appeals. g)( 3. A special permit from the Board of Appeals. To allow: The conversion of The Yarmouth Motel to a condominium form of ownership to be known as The Yarmouth Condominium to be sold and occupied on an interval ownership or timeshare basis. �oea'ieci p l IOL. .Z..I , Jo. ew�iGi, pQ,r-o p ho u� rir> KJ, 1, yA,. L of 1 Lo4 X 1 3. Reason for the Board of Appeals action as checked below: 1. Contrary to Zoning by-laws as follows: 1. 2. 3. g)(2. Approval of Board of Appeals, or Special Permit requested under the following section of Zoning By -Law: 1. 104.4 2. Names and addresses of abutting property owners, and those persons deemed affected,by this application. (At least three.) Signed Lu v Res ec ull�v submit e LFSTPEh I JR. , Attorr Petitioner L■ BOARD OF APPEALS Filed with Town Clerk: Hearing Date: 9/11/86 Petitioners: Petition No: 2358 The Yarmouth, Inc. Robert Ostellino Henriet Ostellino DECISION The petitioners requested a special permit from the Board of Appeals to allow the conversion of the Yarmouth Motel, being shown as Parcel XI, Assessors Map 27, located at 729 Route 28 to a condominium form of ownership to be known as The Yarmouth Condominium to be sold and occupied on an interval ownership or timeshare basis, consisting of a twenty-four (24) unit motel facility. Members of the Board of Appeals present: It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in The Register on , 1986 and , 1986, the hearing was opened and held on the date first above written. The following appeared in favor of the petition: Attorney Lester J. Murphy, Jr. and Robert J. Ostellino. The following appeared by letter or sworn statements: Planning Board and the Health Agent. REASON FOR DECISION: PETITI e,{ This de«an was filed by Petitioner, who owns the locus premises, generally referred to as the Yarmouth Motel. The subject property consists of approximately 61,683 square feet, and is situated on the south side of Route 28, South Yarmouth. The property consists of two (2) buildings, containing twenty-four (24) motel -type units. There are a total of three (3) kitchen facilities contained within the various units. The Petitioner seeks a special permit to change the premises to a condominium form of ownership pursuant to Section 104.4, so that after conversion there will be a total of twenty-four (24) units as shown on the plans hereinafater described. to Petition./2358 Decision cont. The Petitioner has appeared before the Site Plan, Review Committee, and we'have a list of their.comments.and recommendations, all which appear to have been adhered to by the Petitioner. In determining whether to issue a Special Permit under Section 103.2,"this Board must determine that no undue,nuisance, hazard or congestion will be created and that there _will'be no substantial harm to the established or future character of the neighborhood or town. Specifically, as to Section 104.4, the Board must find that there is no change in use, that the condominium documents define the use and provide proper management authority to comply with public health and safety requirements. As to Section 104.3.2, the Board must find that the change will not be substantially more detrimental to the neighborhood han th existing non -conforming use. In reviewing .Petitioner's e note ✓ following: 1A Z-� A. 9perete'The premises.on a seasonal to December 15th of each year; B. basis from February 15th definitely improving the visual aspects of this site' C. *aVe fully engineered plans and specifications to bring .the septic system up to present Town and State standards, if the present system fails �4" Prc... 0 oa_. .1 J D. PrAviJ- ' - condominium documentation four aclear definition of the uses, and providelauthority for the condoiminium Trustees to comply with health and safety requirements, as suggested by the Site Plan Review Committee-' E. Thsca•g1_. ,ke rQnterval ownership or time shies ensure/L that the premises will continue to operate as a motel bj+e-•ef- use with the occupants of each unit changing on a weekly or bi-weekly basis Based on the foregoing, this Board determines that the requirements as setforth in Section 103.2 and Section 104.3.2 have been satisfied and that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the character of the neighborhood or .town, and that the requirements of Section 104.4 relative to conversion to condominium form of ownership have been met. -2- Petition i2358 Decision cont. Based on the foregoing, the Board makes the following decision: (1) To permit the conversion of said property to a condominium form of ownership with said property to consist of twenty—four (24) units within the main motel structure, three (3) units with kitchen facilities as described at the hearing to include refrigerator, sink and two burner stove all as shown on plans hereinafter described and further that said Condominium is to be sold and occupied on an interval ownership or timeshare basis. (2) To permit the conversion of said property to a condominium form of ownership pursuant to Section 104.4, to be operated and sold on a time—share or interval ownership basis. (3) The parking required is 27 spaces as shown on the plans hereinafter described. This decision is specifically predicated upon the following restrictions and conditions: (1) That the twenty—four (24) units, being condominium units 1 through 25, are in no event to be used more than forty (40) weeks per year and may not be occupied during the period from December 16th through February 14th of each winter. This restriction shall be setforth in the Master Deed, and any violation of the same, will render this Special Permit void. (2) Delete parking spaces numbered 1, 2 and 3 as shown on the hereinafter described plan and in their place as well as along Route 28 install a twenty (20') foot wide buffer in accordance with present by—law requirements, said work to be completed by March 15, 1987. (3) The repair and maintenance of the sewerage system, as well as use and maintenance of the pool, must be specifically the responsibility of the Trustees of the Condominium Trust, who shall be specifically empowered to implement this Section. (4) That all improvements made on the site must comply with the following described plans which have been filed with the Yarmouth Board of Appeals: "Plan of Land in Yarmouth as surveyed for Robert J. Ostellino et ux Scale 1 IN. - 30 FT. July, 1986 William N. Rogers, Registered Civil Engineers & Land Surveyors, Off Cemetery Road, Provincetown, Mass." —3— Petition #2358 Decision cant. (5) No person is to occupy'a.unit for more than two (2) consecutive weeks at a time. (6) The unimproved area to the south side of the premises between the motel building and Pawkannawkut Drive as well as land of Walter M. Szymanski is to remain in its natural state. (7) A septic system designed in accordance with the provisions of Title V and acceptable to the Board of Health to serve the premises is to be installed by March 15, 1987. Members of Board voting in favor: Therefore, the petition for approval and/or special permit is granted. No permit is issued until twenty (20) days from date of filing decision with the Town Clerk. CERTIFICATION OF TOWN CLERK I, Kathleen D. Johnson, Town Clerk, Town of Yarmouth, do hereby certify that twenty (20) days have elapsed since the filing with me of the above Board of Appeal #2358 decision and that no notice of appeal of said decision has been filed with me, or if such appeal has been filed it has been dismissed or denied. Kathleen D. Johnson, Town Clerk !Ell TOWN OF YARMOUTH SOUTH YARMOUTH NJASSACHUSETIS 02664 BOARD OF HEALTH MEMO TO: Board of Appeals FROM: Bruce Murphy, Health Agent MPH Q�l DATE: August 20, 1986 Subject: Appeals # 2358, Yarmouth Motel I have reviewed the applicants plans and have the following comments: 1. The site plan does not show all the exslsting sewage system. A plan must be developed to show where new upgraded Title 5 system can be installed. 2. Condominium documents must reflect repair/maintenance of the septic system. 3. Condominium documents must also reflect Board of Health Safety requirements, for the swimming pool. The above was mentioned to Mr. Ostellino on August 13, 1986. Until the above is compiled with, this department will not issue approval/or the con- version. cc: f ile BM:fs ••tiMI,r.Yai.wn.V•'iM.�w�fJtM1^K4f v.. I APFLICANTz The Yarmouth Motel LOCATION: 750 Main St. ASSESSORS' MAP 1 27 South Yarmouth PARCEL 1 R-1 DATE: A„Q,a, tonf FIVE SETS OF PLANS SUBMITTED: YES Y NO PERSONS' PRESENT AT REVIEW NEARING:- r�Oi 17 tf rL V 0 Ai kp, Lt%l • �.. ►�,rrs� �t, 6o•rfic _ PK'�'�2 ^2Ais Kro �A v COMdENT S : LPsrerL %nur%`( Co 6ks-i' a - ©S r a -Li xv-a Qobeg-r J- ©src-L��- - .�o� Jhlts- 2y -� OA.,3 aF�7P 3 onNs �+rF,Jh K:ac1�5 - he he,�/iiat �s '� be avert /%vent a_ri•`y — rrtmoP7 �oKd� ?�rusf -11,// SIGNED: BUrMING DE'. BOARD OF HE ENGINEERING FIRE DEFT: AND WCMIVED BY APPLICANT �V MASTER DEED v OF d THE YARMOUTH CONDOMINIUM �� THE YARMOUTH, INC., a Massachusetts business corporation duly organized under the laws of the Commonwealth of Massachusetts, with a principal place of business at P.O. Box 123, Pittsfield, Massachusetts 01202, (hereinafter referred to as the "Grantor") as sole owner of the premises located at Main Street (Route 28), South Yarmouth, Barnstable County, Massachusetts, hereinafter described, by duly executing and recording this Master Deed, does hereby submit said premises to the provisions of Chapter 183A of the General Laws of Massachusetts and proposes to create, and hereby does create with respect to said premises, a condominium (the "Condominium") to be governed by and subject to the provisions of Chapter 183A, and to that end declares and provides the following: (1) Name. The name of the Condominium shall be THE YARMOUTH-CONDOMINIUM. (2) Description of Land. The premises which constitutes the Condominium is located at 759 Main Street'(Route 28), South Yarmouth, Massachusetts, such land, together with the buildings and improvements thereon, is shown on the plan of The Yarmouth Condominium, prepared by William N. Rogers Registered Civil Engineers and Land Surveyors, filed with the Barnstable County Registry of Deeds in Plan Book Page , being.more particularly described in Exhibit "A" attached hereto. (3) Description of the Buildings. The Condominium consists of one (1) building. The one (1) building contains a total of twenty-four (24) units, are of wood frame construction having wooden bearing walls, wooden floors and concrete block foundations, crawl space walls and wooden floors, wood shingle sidings,, asphalt shingle roofs and cement block chimneys. (4) Designation of Condominium Units. The one (1) building has been divided into twenty-four (24) units, 1 through 12 and 14 through 25, respectively. Units 1 through 12 and 14 through 25 are to be used solely for seasonal resort motel purposes. Common areas and facilities have been provided for these units in accordance with the provisions of this Master Deed. Such units are more particularly described as to designation, location, number of rooms, approximate area and immediately accessible common area and facilities in Exhibit "B" attached hereto and on the floor plans of The Yarmouth Condominium depicting Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22,.23, 24 and 25. Units 1, 2,.3, 4, 5, 6,'7, 9, 10, 11, 12, 14, 15, 16, 19, 20, 21, 22, 23, 24 and 25 each contain and include one studio type motel room and a bathroom containing approximately square feet, and each obtains access through a main entrance to common area ground. -2- d, J Unit 8 contains and includes one studio type motel room with kitchen facilities and a bathroom containing approximately square feet, and obtains access through a main entrance door to common area ground. Units 17 and 18 each contain and include a living room/bedroom with kitchen area, one (1) bedroom and a bathroom containing approximately square feet, and obtain access through a main entrance door to common area ground. The Owner of any Unit may at any time and from time to. time change the use and designation of any room or space within such Unit, subject always to the provisions of Section 10 hereof, and may, subject to the provisions of the next sentence, modify, remove and install non -bearing walls lying wholly within such Unit. Any and all work with respect to installation of interior non -bearing walls or other improvements shall be done in a good and workmanlike manner pursuant to a building permit duly issued therefor (if required by law) and pursuant to plans and specifications which have been submitted to and approved by the Trustees of The Yarmouth Condominium Trust, hereinafter referred to, which approval shall not be unreasonably withheld or delayed. (5) Boundaries of the Units. The floor, ceiling, wall and other boundaries of each of the Units are as follows: (a) Floors: The upper surface of the wood subflooring of the building. (b) Ceilings: The plane of the lower surface of the ceiling' joints of the uppermost ceiling of the unit. -3- (c) Interior Walls: The vertical planes -of the innermost unfinished surfaces of the interior walls dividing the unit from the other units and common areas and facilities. (d) Exterior Walls: The vertical planes of,the outermost surfaces of the exterior building walls. (a) Doors and windows: As to the doors, the exterior surface thereof; as to the windows, the exterior surface of the glass and window frames and windows. Notwithstanding any other provisions of this Master Deed, the Condominium Trust, the By -Laws and the rules and regulations promulgated pursuant thereto, no Unit Owner shall have the right to raise the roof or extend the exterior walls outward of his respective Unit in order to create additional building space. (6) Common'Areas. The Common Areas and Facilities of the Condominium shall consist of.the following to the extent that the same are not included within a Unit or Units: (a) The'land described in Exhibit "A" together with the benefit of and subject to the rights and esements referred to in Exhibit "A"; (b) The foundations, structural columns, girders, beams, supports, exterior walls, party walls and common walls and roofs of the buildings, septic system and water lines; (c) All conduits, ducts, pipes, plumbing, wiring, fire and smoke alarm systems, chimneys, flues and other facilities for the furnishing of utility services which are contained in portions of the buildings contributing to the structure or support thereof, and all such facilities -contained within any ' unit which serve parts of the Condominium other than the unit within which such facilities are contained, and the right to use all such facilities which are situated on the premises and are leased to or otherwise subject to the use and disposition of the Grantor of The Yarmouth Condominium -Trust; (d) The yards, lawns, driveways, plants and walkways and the improvements thereon and thereof (subject to such exclusive rights and easements appurtenant to Units as are hereinabove -4- u ) setforth and as may be established pursuant to provisions hereinafter setforth); (e) The parking spaces located on the'common area.shown on the site; (f) The indoor swimming pool, the laundry area, the office area; and (g) All other elements and features of the Condominium property, however designated or described, excepting only the Units themselves as herein defined and described, and such additional facilities and common areas as may be defined in said Chapter 183A. The owner or owners of each Unit, hereinafter called the "Unit Owner" shall be entitled to an.undivided interest in the Common Areas and Facilities and shall be subject to: (1) the terms and provisions of this instrument and of the By —Laws of The Yarmouth Condominium Trust, as defined and described in Section 12 hereof, (ii) rules and regulations promulgated pursuant thereto with respect to the use thereof, and (iii) the timely making of the payments required to -be made in connection therewith. In addition to and not in limitation of the rights of Unit Owners as elsewhere herein setforth and as provided in said Chapter 183A, the Owner or Owners of each Unit shall have, as appurtenant to such Unit, the rights and easements, in common with the Owner or Owners of all other Units and subject to like rights and easements appurtenant to such other Units, to use the common areas and facilities, including without limiting the generality, walks, paths, conduits, ducts, pipes, plumbing, ISM ., ) septic systems, wiring, chimneys, flues, trash containers and other facilities for the furnishing of utilities and services, subject always, however, to (a) the restrictions and other provisions herein setforth, and (b) -rules and regulations promulgated by the Board of Trustees of The Yarmouth Condominium Trust. The Trustees of The Yarmouth Condominium Trust shall have, and are hereby granted, the right of access at all reasonable times to each Unit for purposes of operation, inspection, protection, maintenance, repair and replacement of common areas and facilities, and correction, termination and removal of acts or things which interfere with the common areas and facilities or are otherwise contrary to or in violation of provisions hereof. The Trustees of The Yarmouth Condominium Trust shall also have, and are hereby granted, the exclusive rights to maintain, repair, replace, add to and alter the paths, walks, utility and service lines and facilities, lawns, trees, plants and other landscaping comprised in the common areas and facilities, and to make excavations for said purposes; and no Unit Owner shall do any of the foregoing without the prior written permission of said Trustees in each instance. If any portion of the common areas and facilities encroaches upon any Unit or any Unit encroaches upon any other Unit or upon any portion of the common areas and facilities as a result of settling or shifting of a building, an easement for the encroachment and for the maintenance of the same so Long as -6- the building stands, shall exist. If any building, any Unit, and adjoining Unit, or any adjoining part of the common areas and facilities shall be partially or totally destroyed as a result of fire or other casualty or as a result of eminent domain proceedings, and then rebuilt, encroachments of part of the common areas and facilities upon any Unit or of any Unit upon any other Unit or upon any portion of the common areas and facilities, due to such rebuilding, shall be permitted, and valid easements for such encroachments and the maintenance thereof shall exist so long as the subject building shall stand. (7) Plans. The Site Plan, bearing the verified statement of a registered surveyor that said plan fully and accurately depicts the location of the building included in the Condominium, and the Floor Plan of the building and units included in the Condominium, showing the layout, location, unit designations and dimensions of the Units, and bearing the verified statement of a registered surveyor that said plans fully and accurately depict the same, are recorded herewith as follows: (a) Site Plan: "Plan of Land.located in South Yarmouth, Mass. as surveyed for The Yarmouth, Inc. depicting The Yarmouth Condominium, Scale 1" - FT., , 1986, William N. Rogers Registered Civil Engineers & Land Surveyors, Off Cemetery Road, Provincetown, Mass." which plan is recorded in Plan Book Page -7- ,, , (b) Floor Plan: "Floor Plan of The Yarmouth Condominium in South Yarmouth, depicting Units 1, 2, 3, 4, 5, 6, 7, 89 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22,,23, 24 and 25, Scale: IN. . 1 FT., , 1986, William N. Rogers, Registered Civil Engineers & Land Surveyors Off Cemetery Road, Provincetown, Mass." which plan is recorded in Plan Book , Page (8) Interest of Units in Common Areas and Facilities. Each Unit in the Condominium shall be entitled to an undivided interest in the common areas and facilities in the percentage specified. therefor in Exhibit "C", annexed hereto and made a part hereof. (9) Purposes. The buildings and each of the twenty-four (24) Units are intended for seasonal resort motel use, seasonal occupancy being limited to the period beginning February 15th and ending December 15th of the same year, all as allowed by this Master Deed, the Condominium Trust, By -Laws and applicable laws. The Grantor may, until all of said Units have been sold by said Grantor: (a) lease units which have-not been sold for use for seasonal resort motel occupancy; and (b), use any units owned by Grantor as models for display purposes for the sale or leasing of units. (10)• Restrictions on Use of Units: Unless otherwise permitted by instrument in writing duly executed by the Trustees of The Yarmouth Condominium Trust pursuant to the provisions of the By -Laws thereof; -8- (a) No Unit shall be used other than solely for seasonal resort motel purposes as a one family type or single household' unit. (b) No Unit shall be used or maintained in a manner contrary to or inconsistent with the By —Laws of The Yarmouth Condominium Trust and regulations which may be adopted pursuant thereto. (c) The architectural integrity of the building and the Units shall be preserved without modification,. and to that end, without limiting the generality, no awning, screen,'antenna, sign, banner or other device and no exterior change, addition, structure, projection, decoration or other feature shall be erected or placed upon or attached to any Unit or any part thereof; no addition to or change or replacement (except, so far as practicable, with identical kind) of any exterior light, door knocker, or other exterior hardware, exterior Unit door.or door frames shall be made, and no painting or other decoration shall be done on any exterior part or surface of any Unit nor on the interior surface of any window; provided, however, that the provisions of this subparagraph (c) shall not restrict the right of any Unit Owner to decorate the interior of his Unit(s) as he may desire so long as such Unit Owner shall in no way whatsoever after, remove or otherwise modify any structural components of his Unit(s). (d) No pets whatsoever may be kept in any unit at any time by either the Unit Owner of a tenant or guest. •. , (e)' All use and maintenance of such Units shall be conducted in a manner consistent with the comfort and convenience of the occupants of other Units and in accordance with provisions with respect thereto from time to time promulgated by said Trustees. Said restrictions shall be for the benefit of the Owners of all of the Condominium Units and the Trustees of The Yarmouth Condominium Trust as the persons in charge of the common areas and facilities, shall be enforceable solely by said Trustees, and shall, insofar as permitted by law, be perpetual; and to that end, may be extended by said Trustees at such time or times and,in such manner as permitted or required by law for the continued enforceability thereof.' No such Owner shall be liable for any breach of the provisions of this paragraph except such as occurs during his or her'ownership thereof. (11)• Amendments. This Master Deed may be amended by an instrument in writing (a) signed by the Owners of Units, entitled to seventy—five (75%) percent or more of the undivided interest in the common areas and facilities, and (b) signed and acknowledged by a majority of the Trustees of The Yarmouth Condominium Trust, and (c) duly recorded with the Barnstable County Registry of Deeds, PROVIDED HOWEVER, that: (a) The date on which such instrument is first signed by a Unit Owner shall be, indicated thereon as the date thereof and no such instrument shall be of any force or effect unless the same has been so recorded within six (6) months after such date; —10— a, A (b) No instrument of amendment which alters the dimensions of, any Unit shall be ofany force or effect unless the same has been so recorded within -six (6) months after such date; {c) No instrument of amendment which alters the percentage of the undivided interest to which any Unit is entitled in the common areas and facilities shall be of any force or effect unless the same has been signed, by the Owners - of all of the Units and said instrument is thereon designated and registered as an Amended Master Deed; (d) No instrument of amendment affecting any Unit upon which.there is a first mortgage of record.or a purchase money second mortgage held by the Grantors or their heirs or assigns shall be of any force or effect unless the same shall have been assented to by the holder(s) of such mortgage(s); (a) No instrument of amendment which alters this Master Deed in any manner which would render it contrary to or inconsistent with any requirements or provisions of said Chapter 183A of the General Laws of Massachusetts shall be of any force or effect. (12) Managing Entity. The Trust .through which the Unit Owners will manage and regulate the Condominium established hereby is The Yarmouth Condominium Trust under Declaration of Trust dated August 1986, to be recorded herewith. Said Declaration of Trust establishes a membership organization of which all Unit Owners shall be members in which such.owners shall have an interest in proportion to the percentage of undivided interest in proportion to the percentage of undivided interest in the common areas and facilities to which they are entitled hereunder. The names and addresses of the original and present Trustees thereof (therein designated as the Trustees thereof) are as follows: ROBERT J. OSTELLINO 75.9 Main Street - South Yarmouth, MA 02664 —11— a. ROBERT A. OSTELLINO 759 Main Street South Yarmouth, MA 02664 Said Trustees have enacted By —Laws, which are setforth in said Condominium Trust, pursuant to and in accordance with provisions of said Chapter 183A of the General Laws of Massachusetts. (13) Interval Ownership. The Grantor intends to sell "intervals" in the Condominium Units of the Condominium whereby the purchaser of an interval(s) will acquire an undivided fee simple interest in one or more of said Condominium Units and its furnishings as a tenant in common with the present owners and successors in interest to each of the owners of the other undivided interests in and to the said Condominium Unit(s) and their furnishings, including, without limitation, the Grantor and its successors in interest, coupled with an undivided interest in the Common Areas of The Yarmouth Condominium as described in the Master Deed, and further coupled with the exclusive right to use and occupy, as against such owners, the Condominium Unit(s) including all improvements to be made or created and its furnishings during a specified Timeshare Interval or specified Timeshare Intervals each year and no more. By this section of the Master Deed the Grantor intends to establish a common scheme and plan for the use, possession, enjoyment, rental, repair,'maintenance, restoration, remodeling and improvement of the Condominium Unit(s) as well as the —12— ., , payment of taxes, common expenses, utilities and other expenses pertaining thereto. Subsection A. Definitions. For the purposes of this section of the Master Deed, all capitalized terms not specifically defined in this section but which are defined in the Master Deed have the same meanings herein as therein. In addition, the following terms shall have the following meanings unless the context clearly indicates a different meaning therefor. (a) "Grantor" shall mean The Yarmouth, Inc. or any successors in interest or assignees by express assignment of the rights of Grantor hereunder by instrument executed by Grantor and duly filed with the Barnstable County Registry of Deeds. (b) The "Condominium Unit" shall mean the Condominium Units described in Section 2 of this Master Deed, including all improvements to be made or created thereto and therein in the future and'all appurtenant eights and easements. (c) "Interval" shall mean an undivided fee simple interest in a Condominium Unit together with the exclusive right to use and occupy the Condominium Unit during one or more Interval Weeks. (d) "Interval Week" shall mean a one week period of time computed as follows: Interval Week.No. 1 is the seven (7) day period commencing on the first Saturday in each -year beginning with 1987. Interval Week No. 2 is the seven (7) day period succeeding -13- Interval Week No. 1 and'each following Interval Week through Interval Week No. 51 is computed'in a similar successive manner. Interval Week No. 52 contains the seven (7) days following the end of Interval Week No. 51 without regard to the month or the year, plus any excess days not otherwise assigned. Interval Weeks run from 3:00 P.M. on the starting Saturday of the Interval Week until '10:00 A.M. on the closing Saturday of the Interval Week, to allow for Service Hours as described in Subsection A(g) of Section 13 of this Master Deed. (e) "Timeshare Intervals" shall mean one of the Interval Weeks so designated as,Timeshare Intervals on Exhibit "D" attached to this Master Deed and made a part hereof. A Timeshare Interval shall mean and include an undivided fractional fee simple interest in a Condominium Unit and Common Areas together with the exclusive right to use and occupy a Condominium Unit and its Common Furnishings as well as the Common Areas during one or more Timeshare Intervals as provided in this Master Deed, and, as between Owners, to use and enjoy the Common Areas and Facilities of the Condominium and rights and easements appurtenant to the Unit during one or more of said Timeshare Intervals together with the undivided interest in the Unit allocated hereunder to such Timeshare Interval. No Interval Week designated Maintenance Interval shall be included in any Owner's Timeshare Interval. —14— a (f) "Maintenance Interval" shall mean one or the Interval Weeks so designated as Maintenance Interval on Exhibit "D" to this Master Deed. The Condominium Units shall be closed during Maintenance Intervals for maintenance purposes - as described in Subsection (c) of this section of the Master Deed. (g) "Service Hours" shall mean the period of time between 10:00 A.M. and 3:00 P.M. on the last day of each Timeshare Interval. (h) "Owner" shall mean the Grantee or Grantees named in a deed or deeds which conveys one or more Timeshare Intervals, the successive owners of each Timeshare Interval so conveyed, and the Grantor.with respect to any Timeshare Intervals not conveyed. (i) "Common Furnishings" shall mean furniture and furnishings for the Condominium Unit or other personal property from time to time owned by or held for use in common by all Owners during their respective Timeshare Interval(s). For list of items included in definition of•Common Furnishings see Exhibit "E". (j) The "Manager" shall mean the Manager appointed by the Trustees pursuant to Article Section of The Yarmouth Condominium Trust. (k)' A "Majority in Interest of Owners" shall mean an Owner or Owners owning in the aggregate more than fifty (50%) percent of the undivided interest in the Condominium Unit. -15- Subsection B. Exclusive Use and Occupancy. (a) Each Owner shall have the exclusive right to use and occupy the Condominium Unit and to use and enjoy the Common Areas for residential purposes only. Such right to use, occupy and enjoy both the Condominium Unit, Common Furnishings and the Common Areas shall be limited in time to only that period covered by Owner's Timeshare Interval(s) (and, in the case of the Grantor, during all Timeshare Intervals not theretofore conveyed) but not during Service Hours. Further, except for the Grantor,.its assigns or invitees, no Owner shall have the right to use or occupy, nor shall any Owner use or occupy the Common Areas during any period other than the period covered by the Owner's Timeshare Interval(s). (b) No Owner shall have the right to use or occupy the Condominium Unit during Service Hours and Maintenance Weeks. Such Service Hours and Maintenance Weeks, are reserved and set off for the purposes described in Subsection C hereof. Notwithstanding the foregoing, if any Owner's Timeshare Interval(s) includes two or more consecutive Timeshare Intervals in the Condominium Unit, the period between 10:00 A.M. and 3:00 P.M. on the last day of any such Timeshare Interval immediately followed by another Timeshare Interval owned by that same Owner shall not be Service Hours within the meaning of this section of the.Master Deed. (c) Each Owner shall have the right to authorize other persons to use and occupy, as well as the right to rent or lease the Condominium Unit during the time period conveyed to the -16- 4, A Owner as his Timeshare Interval(s) as provided in Subsection 0 below, or any part thereof, but such Owner shall remain and be held responsible for any loss, damage or destruction occurring during such occupancy as well as for the charges and expenses relating thereto. (d) Each Owner shall keep the Condominium Unit and all Common Furnishings in good condition and repair during his Timeshare Interval(s) and shall not commit waste, shall vacate the Condominium Unit before the Service Hours at the end of his Timeshare Interval(s), remove all persons and property therefrom excluding only common furnishings, leave the Condominium Unit in good and sanitary condition and repair, and otherwise comply with such reasonable checkout and other procedure as may from time to time be contained in rules promulgated by the Trustees or by a Majority in Interest of Owners. (e) In no event shall an Owner use, permit or allow the Condominium Unit during his Timeshare Interval(s) .to be used for any offensive or unlawful purpose, nor shall the Owner permit or allow any nuisance within the Condominium Unit, nor may the Owner permit or allow the Condominium Unit to be used in a manner which will be the source of annoyance to other unit Owners or occupants within The Yarmouth Condominium, or which in any way interfere with the peaceful possession, comfort, safety, enjoyment and proper use of The Yarmouth Condominium by the other Unit Owners and other occupants thereof, a Condominium Unit shall be used -for residential purposes only in accordance —17— with the provisions of the Condominium Master Deed and the By-laws of The Yarmouth Condominium Trust., Subsection C. Management. Management of the Condominium Unit, maintenance and repair of the Condominium Unit, acquisition, maintenance, repair and replacement of Common Furnishings and administration of the affairs of Owners with respect to the use of the Condominium Unit, occupancy of the Condominium Unit and payment of expenses and costs enumerated herein, shall be under the direction and control of the Trustees of The Yarmouth Condominium Trust. The Trustees may, pursuant to Article , Section of The Yarmouth Condominium Trust, appoint a Manager who, together with the Trustees, shall have exclusive possession of the Condominium Units during the Service Hours which Manager, subject to the review and approval by the Trustees, or the Trustees, if no such Manager is appointed, is authorized to do any or all of the following: (a) Formulate and promulgate rules and regulations which owners shall follow in possessing and vacating the Condominium Unit and moving their personal belongings into and out of the Condominium Unit at the beginning and at the end of each Timeshare Interval, so as to present a minimum of inconvenience and confusion. Any such procedures shall be provided to each Owner at least ten (10) days prior to their effective date and all Owners, family, guests, lessees and other occupants of the Condominium Unit shall at all times comply with said procedures. WI15 (b) Repair, maintain, repaint, remodel, furnish or refurnish the Condominium Unit or any part thereof; establish reserves for anticipated costs, including the acquisition and replacement of Common Furnishings; and to acquire and pay for equipment, materials, supplies, furniture, furnishings, labor or services which the Manager deems necessary or proper for the maintenance and operation of the Condominium Unit, including any capital expenditure determined, in the discretion of Grantor or the Trustees to be necessary for the proper operation of the Condominium complex. (c) Make arrangements or contracts for telephone, water, electricity, gas, cable TV service, waste disposal and other necessary common services. (d) Provide housekeeping services and maintenance and repairs during Service Hours following each occupancy so that the Condominium Unit is in good order and repair and ready for occupancy by the next person entitled thereto. (e) Take all steps in furtherance of the protection of Units including properly closing down and winterizing of the Condominium Units when such is necessary; halt utilities, secure the Condominium Unit, provide periodic and timely inspection, properly prepare and open the Condominium Unit, obtain utilities, refurbish the Condominium Unit, provide thorough cleaning of same, repair and replace common furnishings, provide and/or perform any other service determined to be necessitated within such discretion. -19- (f). Obtain and pay the cost of insurance policies covering the Common Furnishings against fire and other hazards customarily covered by an extended all risk of physical damage coverage provision, public liability insurance insuring against liability for personal injury or property damage resulting from an occurrence in the Condominium Unit (all of said insurance as more fully defined in Subsection M Insurance, below), as well as insurance against such other risks as requested by a Majority in Interest of Owners or the Trustees of The Yarmouth Condominium Trust. (g) Obtain such legal, accounting and other professional services as are necessary to properly maintain and operate the Condominium Units and to properly carry out the obligations under this Master Deed.. (h) Pay all property taxes, Common Expenses and other costs and charges affecting or relating to the Condominium Unit; and to discharge, contest or protest liens or charges affecting the Condominium Unit. (i) Make and enforce reasonable rules and regulations from time to time as are necessary to or convenient in carrying out the intention and purpose of the Master Deed. Any changes in procedure shall be provided to each Owner at least ten (10) days prior to the effective date thereof and all Owners, family, guests, lessees and other occupants of the Condominium Unit shall at all times comply with said procedures. -20- (jj. Each Owner may authorize the Manager to act for him at any meeting of the members of The Yarmouth Condominium. Association and, for this purpose may deliver to the Manager a proxy authorizing the Manager to act for such Owner at any such meeting whenev.er the Owner elects so to do. (k) Take such action, including legal action, as may be judged necessary or advisable to remove from the Condominium Unit any person wrongfully occupying the same. Any such legal action may be brought in the Trusts' name, or in the name of the Owner wrongfully deprived of such occupancy and use. (1) Maintain records of repairs performed or to be performed and the costs of such repairs due to the use of any Condominium Unit, a Common Area or a Common Furnishings inconsistent with ordinary use and which is not attributable to ordinary wear and tear and to collect from each Unit Owner any charges for which he is responsible pursuant to subsection E(a) of Section 13 of this Master Deed. Each Owner shall be responsible, pursuant to this provision, for the actions of all family members, guests, invitees or lessees, and all other persons in the Condominium Unit or in a Common Area with the Owner's express or implied consent. (m) 'Bill and collect from the Owners all sums payable by the Owners as provided herein, including, without limitation, the Common Expense and assessments of The Yarmouth Condominium Trust, take such action, in its own name or in the name of the other Owners of the Condominium Unit, as it deems necessary to —21— collect such sums, including but not being limited to the filing of liens as provided herein, the institution of legal action, and/or the foreclosure of said liens as provided herein. The failure of any Owner to pay such sums shall entitle the Manager to proceed in accordance with Subsection I hereof. (n) Provide.the statement described in Subsection D(c) hereof. Subsection D. Maintenance Fee Assessments. (a) Each Owner shall pay a Maintenance Fee Assessment which shall be determined by multiplying the Condominium Unit expenses by the percentage interest in the Condominium Unit applicable to the Interval Week(s) owned by such Owner as setforth in Exhibit "D", the resulting amount of which will represent the Owner's percentage of the total amount of Maintenance Fee due to be paid by all of the Owners in the Condominium. (b) The Condominium Unit Expenses above referred to shall be the aggregate sum needed to pay all estimated costs and expenses and outlays arising out of or connected with the ownership, maintenance, repair, operation, restoration, repainting, remodeling and improvement of the Condominium Unit, after giving consideration to any reserves which the Trustees, in their discretion, may deem applicable. Said sum may include, among other things, Common Expenses and other assessments against the Condominium Unit by The Yarmouth Condominium Trust, real estate taxes, electricity, gas, oil., water and septic -22- system services, cable TV, landscaping, snow removal, security of premises, linen replacement, insurance premiums for fire and extended coverage, public liability and other casualty insurance from time to time payable, cleaning, repairs, replacements and normal maintenance of the condominium Unit its equipment and appurtenances, capital expenditures determined, in the discretion of the Trustees or the Manager, to be necessary for the proper operation of the Condominium complex, and cleaning, refurbishing, renewal, replacement and/or maintenance of Common Furnishings, Manager's fees, legal and accounting fees, deficiencies by reason of defaults in the payment Maintenance Fee Assessments, and reasonable reserves or surplus funds for contingencies arising or for any of the foregoing items as well as replacement and refurbishing. (c) The Trustees or the Manager, at least once annually, shall prepare a budget setting out the cash requirements it determines are reasonably necessary and required to meet the Condominium Unit Expenses for the current calendar year. The Trustees or the Manager may, from time to -time, increase or diminish the amount previously fixed or determined for such year. The Trustees or the Manager shall have discretionary power to prescribe the manner of operating, maintaining, repairing, restoring and replacing the Condominium Unit and Common Furnishings, and to determine the budget and its determinations shall be final and conclusive as to all Owners. -23- (d) Until modified by the Trustees.or a Majority in Interest of the Owners, the Trustees or the Manager shall prepare the budget on.the basis of a fiscal year ending December 31st. Each owner shall pay his share of the budget in advance of the date of the commencement of his designated Timeshare Interval(s), until either the Trustees or a Majority in Interest of Owners prescribes a different method of billing or time for payment. The Trustees or the Manager may require additional payments of amounts properly payable by the Owners in addition to this payment. All such payments shall be made through the Manager unless the Trustees or a Majority in Interest of Owners otherwise directs. Each Owner shall pay to the Trustees or the Manager his share of the budget at least forty-five (45) days prior to the commencement of the Owners' designated Timeshare Interval(s), or such other time as the Trustees or a Majority in Interest of.Owners•otherwise directs. .Subsection E-. Direct Assessments. Each Owner shall pay the following expenses directly related to his Timeshare Interval(s) until a different method of payment is prescribed by the Trustees or a Majority in Interest of the Owners: (a) The expense of repairing damage caused by the Owner, members of -his family, guests, lessees or other occupants of the Condominium Unit but not including ordinary wear and tear, and the expense of repairing or replacing Common Furnishings through - other than ordinary wear and tear. -24- (b) Other services rendered the Condominium Unit during the Owner's Timeshare Interval(s) provided at the request of an Owner, member of his family, guest or other occupant, when such services are not included as an item in the budget referred to in Subsection D above. The Trustees or the Manager shall have the express authority to inspect the Condominium Unit during the Service Hours only and make an inventory of its contents for the purpose of the determination of any applicable direct assessment. The Trustees or the Manager shall bill each Owner for any such direct assessment as soon as possible after the end of the Owner's Timeshare Interval(s) and such amount shall be paid within ten (10) days after the date thereof. Subsection F. Waiver of Partition. No Owner or other person or entity acquiring any right, title or interest in the Condominium Unit shall institute, cause, permit, participate in or acquiesce in permitting the institution of any action to seek or obtain partition of the Condominium Unit, sale of the Condominium Unit in lieu of partition, or separate the Unit or Timeshare Interval from the percentage of common interest appurtenant to such Unit or Timeshare Interval; provided, however, that nothing herein contained shall prohibit a judicial sale of a Timeshare Interval owned by two or more persons in lieu of partition as between such co -owners of a Timeshare Interval. -25- , No Owner.or group of Owners, including a Majority in Interest of Owners, shall take any action inconsistent with the rights and privileges of any other Owner as setforth herein in this Master Deed, unless said Owner specifically consents to said action. Subsection G. Severance. (a) Each Timeshare Interval interest shall consist of an undivided fractional fee interest in (1) the Condominium Unit, (2) a further. undivided interest in the Common Areas -within The Yarmouth Condominium, which is appurtenant to the Condominium Unit as setforth in this Master Deed, and (3) certain rights and easements appurtenant to the Condominium Unit. Each such , Timeshare Interval interest and the undivided fractional fee interest appurtenant to it is inseparable, must be treated as a whole and may not be divided. To this this end, no Timeshare Interval shall be severed or separate from its undivided fractional fee interest in the Condominium Unit, no undivided interest in the Common Areas within The Yarmouth Condominium shall be severed or separated from the fee interest in the Condominium Unit to which it is appurtenant, no other rights or easements shall be severed or separated from•the fee interest in the Condominium to which they are appurtenant, and any deed or instrument purporting to do so shall be null, void and of no effect. -26- (b) No Owner of such Timeshare Interval shall sell, convey or encumber less than.all of his Timeshare Interval and any sale, mortgage, conveyance, or other voluntary encumbrance of less than all of such Owner's Timeshare Interval shall be null and void and of no effect. The foregoing in no way limits the right of the Owner of two or more Timeshare Intervals to sell, convey or encumber his entire interest in any one or more of his Timeshare Intervals. Subsection H. Conveyancing. (a) A Timeshare Interval may be mortgaged, conveyed, leased, gifted and devised. No Owner shall attempt to mortgage or encumber in any manner whatsoever the Condominium Unit or any part thereof except such Owner's Timeshare Interval nor shall such Owner have the right or authority to do so. (b) Upon written request of any Owner, Mortgagee, prospective Mortgagee, prospective purchaser or prospective transferee, the Trustees or the Manager shall issue to such Owner a certificate of the unexpended balance of any assessment paid to the Trustees or the Manager for the Interval involved, as well as a statement of any amounts unpaid in respect to that Timeshare Interval. Such certificate, for which a reasonable fee may be charged, shall be conclusive evidence of payment of any assessment therein stated to have been paid and shall be binding in favor of any person who may rely thereon in good faith. _27_ (c) Transfer of an Owner's Timeshare Interval shall include the interest said. Owner may have,by'virtue of ownership of.said Timeshare Interval in the Condominium Unit Common Furnishings and the Common Areas, even if not specifically mentioned in the instrument of conveyance. (d) Each mortgage, lease, conveyance and transfer shall adequately identify the Condominium Unit, specify that said Unit is a condominium unit and subject to Massachusetts General Laws Chapter 183A, make reference to the Master Deed, specify the undivided fractional interest in the Unit as shown on Exhibit "C" attached hereto and in the Common Areas which are an integral part thereof, specify the Timeshare Interval to which said document applies and setsforth a statement of the use for which the Unit is intended and the restrictions, if any, on its use. Subsection I. Effect of Non-payment of Assessment. (a) Any assessment which is not paid when due shall be deemed delinquent and shall, together.with such interest thereon and cost of collection thereof as hereinafter provided, become a continuing lien on the Timeshare Interval and appurtenant interests of the delinquent Owner, which shall bind the Timeshare Interval in the hands of said Owner, his heirs, devisees, representatives and assigns. The personal obligation of the said Owner to pay such assessment, as opposed to -the continuing lien, shall remain his personal obligation and shall not pass to his successors in title unless expressly assumed by them. -28- (b) Any assessment which is not paid within thirty (30) days after its due date shall bear interest from said due date. Interest shall be computed at a rate equal to 2% above so-called "prime rate" as charged by the Bank of Boston, N.A. for its most credit worthy customers. The interest shall accrue, and be paid at said rate until the assessment has been paid in full. The Trustees may bring an action against the Owner personally obligated to pay the same or may foreclose the lien against the said Timeshare Interval in the manner provided by statute for the foreclosure of the power of sale of mortgages, and there shall be added to the amount of such assessment the cost of processing such action, or foreclosing said lien, including reasonable attorneys fees, and said interest. (c) The Trustees may file from time to time as the occasion arises, a Notice of Lien in the Barnstable County Registry of Deedb against any Timeshare Interval for the amount of any assessment, plus interest, costs and'attorney's fees, not paid within thirty (30) days from its due date. (d) The lien and right to foreclose shall be in addition to and not in substitution for all other rights and remedies which the Owners or the Trustees may have hereunder. Subsection J. Enforcement. (a) So as to insure the availability of each Timeshare Interval to the Owner rightfully entitled thereto,.every Owner, for the mutual benefit of all owners, agrees that if he fails to vacate the Condominium Unit or - the Common Areas prior to the -29- commencement of the Service Hou= period at the end of his Timeshare Interval, or if he otherwise uses or occupies the Condominium Unit or Common Areas during any part of a Timeshare Interval owned by another, or any part of a Service Hour owned by all Owners of that Condominium Unit in common, or if he prevents another Owner from the full enjoyment, use and peaceful and quiet possession of the Condominium Unit or the Common Areas during any part of such Owner's Timeshare Interval, or prevents the Trustees or the Manager from access to the Condominium Unit or Common Areas during any part of a Service Hour, then he, (hereinafter called the Defaulting Owner): (1) shall be deemed to ipso facto have committed a trespass which will continue until he discontinues said act of use, occupancy or prevention; (2) shall be subject to immediate summary removal; eviction or ejection; (3) shall be subject to immediately and summarily being enjoined from continuing said act or trespass; (4) shall by said act have ipso facto waived and be deemed to have waived any notices, service of process and the right to a bond or other security for injunctive relief; (5) shall be liable for all costs and attorneys fees expensed in connection with the removal of the Defaulting Owner or other action performed to halt such improper use, occupation or prevention; (6) shall be liable for, and pay to the Owner of the Timeshare Interval entitled to use of.the Condominium Unit during the period of wrongful occupancy, all costs and expenses incurred by said Owner in recovering use of the Condominium Unit and/or in removing, evicting, effecting or enjoining said wrongful occupancy, which shall include the cost of alternative accommodations, court costs and reasonable attorney's fees; and MI111 (7) shall pay to the Owner entitled to use the Condominium Unit during the period of wrongful occupancy, a sum equal to two hundred (200%) percent of the fair rental value per day of the Condominium Unit wrongfully occupied for each day or portion thereof, including the day of surrender, during which he, the - Defaulting Owner, wrongfully occupies the Condominium Unit. (b) If an Owner by his negligence renders a Condominium Unit unfit for occupancy by the Owner who is entitled thereto, then the provisions of Section J(a) above shall apply. (c) For the purposes of this Subsection, the act of a guest, lessee, guest of a lessee or any other person using the premises during the Timeshare Interval period with the express or implied.consent of the Owner, shall be considered the act of the Owner. Subsection K. Enforcement of Master Deed. The Grantor, its successors or assigns, Owners and the Trustees shall be entitled, jointly and severally, to maintain equitable or legal proceedings to enjoin, -abate or obtain appopriate relief in respect of any and all breaches of the terms, covenants and conditions of this Section of the Master Deed, the By-laws of The Yarmouth Condominium Trust or the Rules and Regulations promulgated thereunder, an to enforce their terms, covenants and conditions. The provisions of this Master Deed, the By -Laws of The Yarmouth Condominium Trust or the Rules and Regulations promulgated thereunder, may be enforced by any proceeding in law or equity that is appropriate against any person violating or attempting to violate the same, either to -31- restrain violation or to recover damages, and against his property to enforce any lien created by this section of the Master Deed. The Grantor, Trustees and the Manager shall have a right of access to each Condominium Unit during Service Hours for the purposes of making inspections or for the purpose of correcting any conditions likely to result in a breach of provision of this Master Deed, the By —Laws of The Yarmouth Condominium Trust, or the Rules and Regulations promulgated thereunder, or for the purpose of abating, remedying or correcting such breach at the expense of the responsible party or parties, and for the purpose of providing real estate management services, provided that, in the case of emergencies, such access maybe had at all times for- such.purposes. Subsection L. Restrictions on Owners. Unless provided by express consent of the Trustees or a Majority in Interest of Owners, no Owner shall make, cause or permit to be made any improvements', decoration, alterations, additions or modification to the Common Furnishings or any portion of the Common Areas. Unless provided by express consent of the Trustees or all co —tenants, an Owner shall not make, cause or permit to be made any improvements, decorations, alterations, additions or modification to the Condominium Unit. Subsection M. Insurance. (a) The Trustees shall, on behalf of the Owners of all Timeshare Intervals: mills (1) secure and keep in force for the benefit of the Owners and all first lienors, 8eneral public liability and property damage insurance against claims for bodily injury, death or property damage occurring in or about the Buildings and Condominium Units in limits of not less then ONE MILLION ($1,000,000.00) DOLLARS for bodily injury or death; and not less than ninety (90%) percent of the replacement value of the Condominium buildings, the facilities appurtenant thereto and the facilities included within the Common Areas, or such higher amounts that may be requested by a Majority in Interest of Owners; (2) secure and keep in force fire insurance with extended coverage provisions on all furniture, furnishings and other personal property in the Buildings and Condominium Unit which is owned in common, in the amount of the approximate replacement cost thereof. (b) All losses on personal property owned in common shall be paid to the Trustees who shall use the proceeds to replace the lost items. If the damage is not covered by insurance, or if the available insurance proceeds are insufficient, the Trustees shall assess and the Owners shall pay the cost thereof or deficiency in proportion to their undivided ownership interests in the Condominium Unit unless the damage was caused by the intentional or negligent act or omission or wanton and willful misconduct of any Owner, his family, guests, invitees or lessees, in which event the cost of repair or deficiency shall be paid by such Owner. (c) The insurance proceeds from all losses caused by damages or whatever nature to the Condominium buildings, Common Furnishings or facilities within the Common Areas will be paid to the Mortgagee or Mortgagees of record as its interest may appear and the Trustees of The Yarmouth Condominium Trust for -33- the purpose of replacing, refurbishing and/or reconstructing the Condominium Building, Common Furnishings or facilities within the Common Areas and no Owner shall have the right to make demand upon a share of the proceeds, it being the express understanding of all parties that the said insurance provided pursuant to this Subsection is for the purpose of maintaining the Condominium Buildings, Common Furnishings, and facilities with the Common Areas as they exist now or prior to the time of the loss. Subsection N. Repairs to Premises. All repairs and maintenance to the Condominium Units shall be made by the Manager. No Owner shall make repairs, cause any material to be furnished nor any labor to be performed herein or thereon. Each Owner hereby indemnifies and holds harmless all other Owners against any loss, damage or claim arising out of a breach of the provisions of this Subsection, including the costs of removing any unauthorized improvements, repairs or alterations and repairing and restoring the Condominium Unit to the condition prior to such breach. The Manager shall assess the Owner for all costs arising out of his breach of this provision payable by said Owner and enforceable and collectible by the Manager in the same manner as other Direct Assessments. Subsection 0. Rental of Timeshare Interval(s). An Owner may, at his option, rent all or any portion of his interest in a Timeshare Interval, provided that said Owner notifies the Grantor or the Trustees of any such rental and, -34- further provided that notice of such rental in writing on a form as provided by the Grantor or the Trustees has been completed and sent or delivered to the Grantor or Trustees at least seven (7) days prior to the time set for occupancy under such rental agreement. Subsection P. Condemnation. In the event of a taking in condemnation or by eminent domain of part or all of a Condominium Unit or the Common Areas, the award made for such taking shall be payable to the Trustees of The Yarmouth Condominium Trust as Trustees for the Owners and their respective first mortgagees, of record. If a Majority in interest of Owners duly and promptly approve by vote the repair and restoration of the property, the Trustees shall arrange for repair and restoration and shall disburse the proceeds of such award to the contractors engaged in such repair and restoration in appropriate progress payment; provided, however, that no consent of an Owner whose Timeshare Interval is encumbered by a first mortgage shall be deemed effective for the foregoing purposes without the written consent of the holder of such mortgage. In the event that such approvals and consents are not obtained within one hundred (120) days, the Trustees shall, to the extent permitted by law, disburse the.net proceeds of such award to the Owners and their respective first mortgagees of record. -35- Subsection Q. Maintenance Week in Units Committed to Interval Ownership. Upon conveying thirty (30) Timeshare Intervals in any unit committed to Interval Ownershp, or six (6) months from the date of the first conveyance under Interval Ownership in any unit committed to Interval Ownership, whichever date comes first, the Grantor agrees to convey and the •Condominium Trust agrees to accept the twelve (12) Maintenance Intervals to be used for maintenance purposes. Subsection R. Waiver. Failure to enforce any provision of this instrument in a particular instance shall not constitute a waiver of such provision as to any further instance. Subsection S. Construction. Nothing contained in this Section of the Master Deed shall be construed to conflict with or take precedence over any provisions of this Master Deed, the By -Laws of The Yarmouth Condominium Trust as they relate to ownership of the Condominium Unit as a whole, or the Rules and Regulations promulgated hereunder as they relate to the use of the Common Areas and Facilities; and in the event of any inconsistency between the terms of this Section and said Condominium documents the terms of said Condominium Documents shall govern. However, this section shall govern all aspects of ownership as they relate solely to ownership of Timeshare Intervals as defined herein. -36- (a) As used herein, the singular shall include the plural and the masculine or neuter general shall include other genders whenever the context so requires. Subsection T. Notices. Any notice required to be sent to an Owner under the provisions of this Section of the Master Deed shall be deemed to have been properly sent when mailed, postage prepaid, to the last known address of the person(s) who appear(s) as Owner of record at the time of such mailing. Subsection U. Voting. Each vote required or permitted pursuant to this Section of the Master Deed shall be conducted by the Trustees who shall maintain records of all votes taken. All voting shall be conducted by mail. Each Owner shall be entitled to one vote for each Timeshare Interval owned. (However, if an Interval is owned by more than one person, all such persons shall be entitled to a total of one vote per Timeshare Interval). In the event that co -owners of a Timeshare Interval are unable to agree on how to vote, no vote shall be made. ,The Grantor, or its successor in interest, shall be entitled to one vote for each unsold Timeshare Interval owned by it. Maintenance Weeks shall not be considered eligible for voting. (14) Units Subject to Master Deed, Unit Deed and Condominium Trust. (a) A11•present and future owners, their employees, tenants, guests, patrons and visitors shall be subject to, and• -37- shall comply with, the provisions of the Master Deed, the Unit Deed, the Condominium Trust,'the By -Laws and the rules and regulations promulgated pursuant thereto, as they may be amended from time.'to time, and the items affecting the title to the land as setforth in Sections 2 and 6 above. The acceptance of a deed or conveyance or entering into possession of any Unit shall constitute an agreement that (i) the provisions of this Master Deed, the Unit Deed, the Condominium Trust, the By -Laws and the Rules and Regulations promulgated pursuant thereto, as they may be amended from time to time, and the said items affecting title to the land are accepted and ratified by such owner, tenant, visitor, guest, patron, employee or occupant, (ii) all of such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having at any time any interest or estate in such Unit, as though such provisions were recited and stipulated at length in each and every deed or conveyance or lease thereof, and (iii) a violation of the provisions of this Master Deed, the Unit Deed, the Condominium Trust, the By -Laws or the rules and regulations promulgated pursuant thereto by any such person shall be deemed a substantial'violation of the duties of the owner of Unit. (b) The failure of any.Unit Owner to comply with any of the provisions of the Master Deed, Condominium Trust, the rul.es and regulations promulgated thereto and Chapter 183A, shall give -38- rise to a Cause of action in the Trustees of said Trust, and any aggrieved.Unit Owner, which may then enforce said provisions in any manner permitted by law, including without limitation, by court action, injunctive relief, and seek damages on behalf of the Trust or individual Unit Owners. (15) Provisions for Protection of Mortgagees. Notwithstanding anything in the Master Deed, the By -Laws of the Condominium Trust, or the rules and regulations promulgated pursuant thereto to the contrary, the following provisions shall apply for the protection of the holders of the first mortgages (hereinafter "First Mortgagees") of record with respect to the Units and Timeshare Intervals and shall be enforceable by any First Mortgagee: (a) any right of first refusal in connection with the sale of a Unit as may be hereafter adopted shall not impair the rights of a First Mortgagee to: (i) foreclose or take title to a Unit pursuant to the remedies provided in its mortgage; or. (ii) accept a deed (or assignment) in lieu of foreclosure in the event of a default by a mortgagor; .or (iii) sell or lease a Unit acquired by the First Mortgagee; (b) Any party who takes title to a Unit through a - foreclosure sale duly conducted by a First Mortgagee shall be exempt from any such right of first refusal adopted by the Unit Owners and incorporated in this Master Deed or the By -Laws of the Condominium Trust. MI15 (c) Any First Mortgagee who obtains title to a Unit by foreclosure or pursuant to any other remedies provided in its mortgage or by law shall not be liable for such Unit's unpaid common expenses or dues which accrued prior to the acquisition of title to such Unit by such First Mortgagee; (d) Except as provided by statute in case of condemnation or substantial loss to the Units and/or Common Elements of the Condominium project, unless one'hundred (100%) percent of the First Mortgagees (based upon the vote for each first mortgage owned), or owners (other than the sponsor, developer, or builder) of the individual Condominium Units have given their written approval, the Condominium Trust and the Unit Owner shall not be entitled to: (i) by any act or omission, seek to abandon or terminate the Condominium except in the event of substantial destruction of the Condominium by fire or other casualty or in the case of taking by condemnation or eminent domain; ,or (11) change the pro rata interest or obligations of any individual Unit for the purpose of:' A, levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards, or B. determining the pro rate share of ownership of each Unit in the Common Elements; (iii) partition or subdivide any Unit; or (iv) by any act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Common Elements, provided, that the granting of easement for public utilities or for other public purposes consistent with the intended use of the Common Elements shall not be deemed an action for which prior consent of the First Mortgagees shall be required pursuant to this clause; or -40- (v) use hazard insurance proceeds-on'account*of losses to either the Units or the Common Elements for other than the repair, replacement or reconstruction thereof., except as otherwise provided by statute in case of a taking of or substantial loss to the Units and/or Common Elements; (e) Consistent with the provisions of Chapter 183A, all taxes, assessments and charges which may become liens prior to a first mortgage under the laws of the Commonwealth of Massachusetts shall relate only to the additional units and not to the Condominium as a whole; (f) In no event shall any provision of this Master Deed or the By -Laws of the Condominium Trust give a Unit Owner or any other party priority over any rights of a First Mortgagee' pursuant to its mortgage in the case of a distribution to such Unit Owner of insurance proceeds or condemnation awards for losses to or taking of such Unit and/or the Common Elements; (g) A First Mortgagee, upon request made to the Condominium Trust shall be entitled to: (i) written notification from the Condominium Trust of any default by its borrower who is an owner of a Unit with respect to any obligations of such borrower under this Master Deed or the provisions of the By -Laws of the Condominium Trust which is not cured within sixty (60) days; (ii) inspect the books and records of the Condominium Trust at all reasonable times; (iii) receive an annual financial statement of the Condominium Trust within ninety (90) days following the end of any fiscal year of the Condominium Trust; (iv) receive written notice of all meetings;. and (v) receive prompt written notification from the Condominium Trust of any damage by fire or other casualty to the Unit upon which the First Mortgagee holds a first mortgage or any proposed taking by condemnation of eminent domain of said Unit or the Common Elements; -41- (h) No agreement for professional management of the Condominium or any other contract with Grantor may exceed a term of two (2) years, and any such agreement shall provide for termination by either party without cause and without payment of a termination fee on thirty (30) days or more written notice. The Grantor intends that the provisions of this Section 14 shall comply with the requirements of the Federal Home Mortgage Corporation and Federal National Mortgage Association with respect to condominium mortgage loans and all questions with respect thereto shall be resolved consistent with that intention. The provisions of this Section 14 may not be amended or recorded without the written consent of all First Mortgagees, which consent shall appear on the instrument of amendment as such instrument is duly recorded with the Barnstable County Registry of Deeds. (15) Conflicts. If any provisions of this Master Deed shall be invalid or shall conflict with Chapter 183A, as amended, of the General Laws of Massachusetts, or if any provision of this Master Deed conflicts with any other provisions thereof or with any provisions of the Condominium Trust, then the following rules of construction shall be used: (a) In the event of a conflict between the Master Deed and said Chapter 183A as amended, the provisions of Chapter 183A shall control; -42- (b) The invalidity of any provisions of the Master Deed shall not impair or affect the validity or enforceability of the other provisions of this Master Deed, and such remaining provisions of this Master Deed shall continue in full force and effect as if such invalid provisions have never been included herein; (c) In the event of any conflict between the preceding Section 14 and any other provisions of the Master Deed or the Condominium Trust, the provisions of said Section 14 shall control. (16) Waiver. No provision contained in this Master Deed shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur. (17) Captions. The captions herein are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Master Deed nor the intent of any provision hereof. (18) Definitions. All terms and expressions used in this Master Deed which are defined in Massachusetts General Laws, Chapter 183A shall have the same meanings here unless the context otherwise requires. (19) The Units and common areas and facilities, and the Unit Owners and Trustees of the Condominium Trust, shall have the benefit of and be subject to the provisions of said Chapter 183A of the General Laws of Massachusetts, and in all respects —43— not specified in this Master Deed or in said Condominium Trust and the By -Laws setforth therein, shall be governed by the provisions of said Chapter 183A in their relation to each other and to the Condominium established hereby, including, without. limitation, provisions thereof with respect to common expenses, funds and profits, with respect to improvements and rebuilding of common areas and facilities, and with respect to removal of the Condominium premises or any portion thereof from the provisions of said Chapter 183A. IN WITNESS WHEREOF, The Yarmouth, Inc. has caused its name to be signed and its corporate seal to be hereto affixed by Robert J. Ostellino, its President and Treasurer, this of August, 1986. THE YARMOUTH, INC. BY: ROBERT J. OSTELLINO, President and Treasurer STATE OF MASSACHUSETTS Barnstable, as August , 1986 Then personally appeared the above named Robert J. Ostellino, President and Treasurer and acknowledged the foregoing instrument to be the free act and deed of The Yarmouth, Inc., before me, My commission expires: Notary Public -44- EXHIBIT nA" The land situate in Yarmouth, Barnstable County, Massachusetts, bounded and described as follows: PARCEL ONE: Beginning at the northeast corner of the premises on the State Highway (Route 28); .Thence Southerly approximately two hundred thirty (230) feet to Pawkannawkut Drive, a private way; Thence by said Pawkannawkut Drive, eighty (80) feet, more or less; Thence Northerly two hundred thirty (230) feet, more or less, to said State Highway; Thence Easterly by said State Highway fifty—two (52) feet, more or less, to the point of beginning. Being shown on plan of "Pilgrim Acres in the Village of South Yarmouth, Mass., Property.of Arthur D. Fuller, at al", recorded with Barnstable County Registry of deeds in Plan'Book 75, Page 27. PARCEL TWO: Commencing at the northeast corner of the granted premises on the State Highway (Route 28) at the northwest corner of a parcel of land described above as "Parcel One"; Thence along Route 28 in a westerly direction to the land now or formerly of H. Studley; Thence by said land of:H. Studley in a southwesterly direction two hundred thirty—four and 95/100 (234.95) feet along the easterly boundary of land -now or formerly of H. Studley as shown on plan of land' entitled '.'Correcting Plan of Land in South Yarmouth, Mass., Property of Gilbert Studley, Jr., dated November, 1949, Scale V - 100' Everett N. Hinckley, Registered Land Surveyor" said plan recorded April 27, 1950, at the Barnstable County Registry'of Deeds in Plan Book 92, Page 127; Thence in an easterly direction in a straight line to the southwesterly corner of the land deeded to Caleb Pierce, Inc., by John J. Taylor and M. Patricia Taylor recorded in Book 899, Page 141, Barnstable Deeds; Thence along the westerly bound of the land -of Caleb Pierce, Inc., hereinbefore mentioned, two hundred thirty (230), feet, more or less, to the State Highway (Route 28) and the point and place of beginning. Together with a right to use in common with all others Pawkannawkut Drive, as shown on a plan hereinafter referred to. The above described premises are shown as a portion of .Section R on a plan of land entitled: "Pilgrim Acres in the Village of South Yarmouth, Mass., Property of Arthur D. Fuller and Walter N. Latimer, Scale 1"-80', March 24, 1945, Bearse & Kellogg Architects -Engineers, Centerville, Massachusetts", said plan duly recorded with the Barnstable County Registry of Deeds in Plan Book 75, Page 27. PARCEL THREE: Beginning at a point on the southerly side of the State Highway (Route 28) at a point distant three hundred (300) feet westerly from the intersection of the southerly line of said. State Highway with the westerly line of Seaview Avenue; Thence running southerly by the westerly line of land conveyed to Robert M. Collins et ux by deed dated August 29. 1952, recorded with the Barnstable Deeds Book 822, Page 230, a distance of two hundred forty (240) feet more or less, to the northerly line of Pawkannawkut Drive, as shown on plan hereinafter mentioned, said line being parallel to the westerly line of said Seaview Avenue; Thence turing and running westerly by the northerly line of Pawkannawkut Drive, one hundred (100) feet to a point and corner and other land now or formerly of Arthur D. Fuller and Walter N. Latimer; Thence turning and runnig northerly in a line parallel to the first described course and also parallel to the westerly line of Seaview Avenue, two hundred forty (240) feet, more or less, to the southerly line of the said State Highway; Thence turning and running easterly by the southerly line of said State Hingway, one hundred (100) feet to the point of beginning. The above -described premises constitute a portion of Block R as shown on a plan entitled "Pilgrim Acres in the Village of South Yarmouth, Mass., Property of Arthur D. Fuller and Walter N. Latimer Scale 1" - 80', dated March 24, 1945, by Bearse & Kellogg Architects & Engineers, Centerville, Mass." recorded with the Barnstable Deeds in Book 75, Page 27. The above -described premises are conveyed subject to an easement granted to the Commonwealth of Massachusetts by instrument dated February 1, 1955, recorded with the Barnstable Registry of De.eds in Book 901, Page 419. PARCEL FOUR: Also another parcel of land as more particularly described in a deed from John J. Taylor at ux dated September 21, 1957, recorded with Barnstable'Cougty Registry of Deeds in Book 984, Page 169. Being a portion of Section "R" on a plan entitled "Pilgrim Acres in the Village of South Yarmouth, Mass., Property of Arthur D. Fuller and Walter N. Latimer, Scale: 1"-80', dated March 24, 1945, Bearse & Kellogg, Architects -Engineers, Centerville, Mass." which plan is duly filed in the Barnstable Registry of Deeds in Plan Book 75, Page 27, and is more particularly bounded and described as follows: Beginning at a point at the southeast corner of other land of Kenneth F. Cowgill et ux within the aforementioned section "R" and being two hundred and forty (240) feet southerly of the State Highway as shown on said plan, thence Southerly a distance of -ten (10) feet, more or less, to the northerly side of Pawkannawkut Drive; thence Southwesterly by a line running S 69 40' 20" W, being in part the northerly side of Pawkannawkut Drive aforesaid and continuing in the said direction until it reaches the easterly side of a ten (10) foot bridle path as shown on said plan; thence Northerly by the easterly side of the ten (10) foot bridle path aforesaid to other land of Kenneth F. Cowgill et ux; thence Easterly by a line running by other land of Kenneth F. Cowgill et ux to the point of.beginning. For title see the deed of Robert J. Ostellino et ux dated 1986, and recorded with the Barnstable.County Registry of Deeds in Book , Page EXHIBIT "B" UNIT APPROXIMATE NUMBER AND IMMEDIATE ACCESSIBLE SIGNATION SQ. FT. AREA DESIGNATION OF ROOMS COMMON AREAS AND FACILITIES 1. Two,rooms including living room/ Main entrance to common area. bedroom and bathroom. 2 to u 3 of n 4 " n 5 is • 6 of n 7 " u B Two rooms including living room/ " bedroom/kitchen and bathroom. 9 Two rooms including living room/ " bedroom and bathroom. 10 is 11 .12 12 " 14 15 " 16 17 Three rooms including living room/ bedroom/kitchen, bedroom and bathroom.. 16. 19 Two rooms including living room/ ' bedroom and bathroom. 20 of n 21 of 22 of " 23 It " 24 of It 25 " EXHIBIT "C" Unit Percentage of Undivided Designation Interest in Common Areas 1 4.1% 2 4.1% 3 4.1% 4 4.1% 5 4.1% 6 4.1% 7 4.1% 8 4.5% 9 4.1% 10 4.1% 11 4.1% 12 4.1% 14 4.1% 15 4.1% 16 4.1% 17 5.3% 18 5.3% 19 4.1% 20 3.9% 21 3.9% 22 3.9% 23 3.9% 24 3.9% 25 3.9% TOTAL: 100.0% EXHIBIT "D" INTERVAL UNDIVIDED INTEREST WEEK DESIGNATION IN CONDOMINIUM UNIT 1 Maintenance Interval 0.0% 2 Maintenance Interval 0.0% 3 Maintenance Interval 0.0% 4 Maintenance Interval 0.0% 5 Maintenance Interval 0.0% 6 Maintenance Interval 0.0% 7 Maintenance Interval 0.0% 8 Maintenance Interval 0.0% 9 Timeshare Interval 2.5% 10 Timeshare Interval 2.5% 11 Timeshare Interval 2.5% 12 Timeshare Interval 2.5% 13 Timeshare Interval 2.5% 14 Timeshare Interval 2.5% 15 Timeshare Interval 2.5% 16 Timeshare Interval 2.5% 17 Timeshare'Interval 2.5% 18 Timeshare Interval 2.5% 19 Timeshare Interval 2.5% 20 Timeshare Interval 2.5% 21 Timeshare Interval 2.5% 22 Timeshare Interval 2.5% 23 Timeshare Interval 2.5% 24 Timeshare Interval 2.5% 25 Timeshare Interval 2.5% 26 Timeshare Interval 2.5% 27 Timeshare Interval 2.5% 28 Timeshare Interval 2.5% 29 Timeshare Interval 2.5% 30 Timeshare Interval 2.5% 31 Timeshare Interval 2.5% 32 Timeshare Interval 2.5% 33 Timeshare Interval 2.5% 34 Timeshare Interval 25% 35 Timeshare Interval 2..5% 36 Timeshare Interval 2.5% 37 Timeshare Interval 2.5% 38 Timeshare Interval 2.5%' 39 Timeshare Interval 2.5% 40 Timeshare Interval 2.5% 41 Timeshare Interval 2.5% 42 Timeshare Interval 2.5% 43 Timeshare Interval 2.5% 44 Timeshare Interval 2.5% 45 Timeshare Interval 2.5% 46 Timeshare Interval 2.5% 47 Timeshare Interval' 2.5% 48 Timeshare Interval 2.5% 49 Maintenance Interval 0.0% 50 Maintenance Interval 0.0% 51 Maintenance Interval 0.0% 52 Maintenance Interval 0.0% THE YARMOUTH CONDOMINIUM TRUST THIS DECLARATION OF TRUST made this day of August, 1986, at South Yarmouth in the County of Barnstable and Commonwealth of Massachusetts by ROBERT J. OSTELLINO and ROBERT A. OSTELLINO, both of 759 Main Street, South Yarmouth, Barnstable County, Massachusetts (hereinafter called the Trustees, which term and any pronoun referred thereto shall be deemed to include their successors in trust hereunder and to mean the trustees of the Trust at the time being hereunder wherever the context so permits). ARTICLE I Name of Trust The trust hereby created shall be known as The Yarmouth Condominium Trust, and under that name, so far as legal, convenient and practicable, shall all business carried on by the Trustees to be conducted and shall all instruments in writing by the Trustees be executed. ARTICLE II . The Trust and Its Purposes Section 1. All of the rights and powers in and with respect to the common areas and facilities of The Yarmouth Condominium ("Condominium") established by a Master Deed of even date and recorded herewith which.are by virtue of provisions of Chapter 183A of the' Massachusetts.General Laws conferred upon or exercisable by the organization of unit owners of said Condominium, and all property, real and personal, tangible and intangible, conveyed to the Trustees hereunder shall vest in the Trustees as joint tenants with right of survivorship as Trustees of this trust, in trust to exercise, manage, administer and• dispose of the same and to receive the income thereof for the benefit of the owners of record from time to time of the units and interests therein of said Condominium (hereinafter called the Unit Owners), according to the schedule of undivided . beneficial interests setforth in Exhibit "C" of said Master Deed, which schedule is incorporated herein by reference, and in accordance with the provisions of said Chapter 183A, this trust being the organization of the Unit Owners established pursuant to provisions of said Chapter 183A for the purposes therein setforth. Section 2. It is hereby expressly declared that a trust and not a partnership has been created and that the Unit Owners are cestuis qua trustent, and not partners or associates nor in any other relation whatever between themselves with respect to. the trust property, and hold no relation to the Trustees other than of cestuis que trustent, with only such rights as are —2— conferred upon them as such cestuis que trustent hereunder and under and pursuant to the provisions of said Chapter 183A of the General Laws. Section 3. Except as otherwise herein defined or as may be required by the context all terms shall have the same meaning as setforth in said Master Deed. ARTICLE III The Trustees Section 1. There shall at all times be Trustees consisting of such number, not less than two (2) nor more than five (5), as shall be determined from time to time by vote of the Unit Owners entitled to not less than fifty-one (51%) percent of the beneficial interest hereunder. If and whenever the number of such Trustees shall become less than two (2), or less than the number of Trustees last determined as aforesaid, a vacancy or vacancies in said office shall be deemed,to exist. Each such vacancy shall be filled by instrument in writing setting forth (a) the appointment of a natural person to act as such Trustee, signed (1) by Unit Owners entitled to not less than fifty-one (51%) percent of the beneficial interest hereunder, or (ii) if Unit Owners entitled to such percentage have not within thirty (30) days after the occurrence of any such vacancy made such appointment, by a majority of the then remaining Trustee, or by the sole remaining Trustee if only one, and (b) the acceptance of'such appointment, signed and -3- acknowledged by the person so appointed. Such appointment shall become effective upon the recording with the Barnstable.County Registry of Deeds of a certificate of such appointment signed'by a majority of the then remaining Trustees or Trustee, if any there be still in office, or by Unit Owners holding at least fifty-one (51%) percent of the beneficial interest, if there be no such Trustee, together with such acceptance, and such person shall then be and become such Trustee and shall be vested with the title to the trust property jointly with the remaining or surviving Trustees or. Trustee without the necessity of any act of transfer or conveyance. If for any reason any vacancy in the office of Trustee shall continue for more than sixty (60) days and shall at the end of that time remain unfilled, a Trustee or Trustees to fill such vacancy or vacancies may be appointed by any court of competent jurisdiction upon the application of any Unit Owner or Trustee and notice to all Unit Owners and Trustees and to such other, if any, parties in interest to whom the court may direct that notice be given. •The foregoing provisions of this section to the contrary notwithstanding, despite any vacancy in the office of Trustee, however caused and for whatever duration, the remaining or surviving Trustees, subject to the provisions of the immediately following section, shall continue to exercise and discharge all of the powers, discretions and duties hereby conferred or imposed upon the Trustees. -4- Section 2. In any matters relating to the administration of the trust hereunder and the exercise of the powers hereby conferred, the Trustees may act by majority vote at any duly called meeting at which.a quorum is present, as provided in Paragraph A of Section 10 of Article V; provided, however, that in no event shall a majority consist of less than one (1) Trustee hereunder, and, if and whenever the number of Trustees hereunder shall become less than one (1), then no Trustee shall have any power or authority whatsoever to act with respect to the administration of the trust hereunder or to exercise any of the powers hereby conferred except as provided in Section 1 of Article III. The Trustees may also act without a meeting.by instrument signed by a majority of their number. Section 3. Any Trustee may resign at any time by instrument in writing, signed and acknowledged in the manner required in Massachusetts for the acknowledgement of deeds and such -resignation shall take effect upon the recording of such instrument with the aforesaid Barnstable County Registry of Deeds. Section 4. No Trustee named or appointed as hereinbefore provided, whether as original Trustee or as successor to or as substitute for another, shall be obliged to give any bond or surety or other security for the performance of any of his duties hereunder, provided, however, that Unit Owners entitled to not less than fifty-one (51%) percent of the beneficial interest hereunder may, at any time, by instrument in writing signed by them and delivered to the Trustee or Trustees -5- affected, require that any one'or more of the Trustees shall -give bond in such amount .and with such sureties as shall be specified in such instrument. All expenses incident to any such bond shall be charged as a common expense -of the Condominium. Section 5. No Trustee shall be entitled to any renumeration for his services other than reasonable renumeration for extraordinary or unusual services, legal or otherwise, rendered by him or her in connection with the trusts hereof, all as shall be from time to time fixed and determined by the Trustees, and such renumeration shall be a common expense of the Condominium. Section 6. No Trustee hereinbefore named or appointed as hereinbefore provided shall under any circumstances or in any event be held liable or accountable out of his or her personal assets or be deprived of compensation,by reason of any action taken, suffered or. omitted in good faith or be so liable or accountable for more money or other property than he or she actually receives, or for allowing one or more of the other Trustees to have possession of the trust books or property, or be so liable, accountable or deprived -by reason of honest errors in judgment or mistakes of fact or law or by reason of the existence of any personal or adverse interest or by reason of anything except his or her own personal and willful malfeasance and defaults. —6— Section 7. No Trustee shall be disqualified by his or her office from contracting or dealing with.the Trustees or with one or more Unit Owners (whether directly or indirectly because of his or her interest individually or the Trustees' interest or any Unit Owner's interest in any corporation, firm, trust or other organization connected with such contracting or dealing or because of any other reason),.as vendor, purchaser, or otherwise, nor shall any such dealing, contract or arrangement entered into in respect to this trust in which any Trustee shall be in any way interested be avoided nor shall any Trustee so dealing or contracting or being so interested be liable to account for any profit realized by any such dealing, contract or arrangement by reason of such Trustee's holding office or of the fiduciary relation hereby established, provided the Trustee shall act in good faith and shall disclose the nature of his or her interest before the dealing,.contract or arrangement is entered into. Section 8. The Trustees and each of them shall be entitled to indemnity both out of the trust property and by the Unit Owners against,any liability incurred by them or any of them in the execution hereof, including without limiting the generality of the foregoing, liabilities in contract and in tort and liabilities for damages, penalties and fines. Each Unit Owner shall be personally liable for all sums lawfully assessed for his or her proportionate share of any claims involving the trust property in excess thereof, all as provided in Sections 6 —7— and 13 of said Chapter 183A. Nothing in this paragraph contained 'shall be deemed, however, to limit in any respect the powers granted to the Trustees in this instrument.. Section 9. Each Trustee shall serve for a term of one year from the date.of recording in the aforesaid Registry of Deeds of his or her acceptance, and until his or her successor is appointed and qualified to serve, except that the terms of the original Trustees hereunder, in order of signature hereto, shall be for one and two years respectively from the date this trust is registered with the aforesaid Registry of Deeds, subject however to the provisions of the following paragraph. Appointment of successor Trustees shall be made in the manner setforth in Article III, Section 1 hereof to fill any vacancy in such office. Notwithstanding the foregoing, without the consent of the Grantor of the Master Deed, there shall, in no event, be more than five (5) Trustees at any time in office, nor shall the original Trustees or their successors be replaced without the consent of the Grantor until the earlier of the following events shall occur: (a) one (1) month after the sale by the Grantor of more than seventy—five (75Z) percent of the beneficial interest herein or (b) two (2) years after the first unit of the Condominium is conveyed by the Grantor. This paragraph.of Section 9 may not be amended without the consent of the Grantor of the Master Deed. For purposes of this Section 9, ownership of beneficial interests by a trust in which the Grantor is a Trustee shall be deemed ownership by the Grantor. Im ARTICLE IV Beneficiaries and the Beneficial Interest in the Trust Section 1. The cestuis qua trustent shall be the Unit Owners of the'Condominium for the time being. The beneficial interest in the trust hereunder shall be divided among the Unit Owners in the percentages of undivided beneficial interest pertaining to the Units of the Condominium, as setforth in Section 1 of Article II hereof. Section 2. The beneficial interest of each Unit of the Condominium shall be held and exercised as a unit and shall not be divided among several owners of any such Unit. To that end, whenever any of said Units is owned of record by more than one person, the several owners of such Unit shall (a) determine and designate which one of such owners shall be authorized and entitled to cast votes, execute instruments and otherwise exercise the rights appertaining to such Unit hereunder, and (b) notify the Trustees of such designation by a note in writing signed by all of the record owners of such Unit. Any such designation shall take effect upon receipt by the Trustees and may be changed at.any time and from time to time by notice as aforesaid. In the absence of, any such notice of designation, the Trustees may designate any one such owner for such purposes. ARTICLE V By —Laws The provisions of this Article V shall constitute the By —Laws of this trust. —9— Section 1. Powers of the Trustees: The Trustees. shall, subject to and in accordance with all applicable provisions of said Chapter 183A, have the absolute control, management and disposition of the trust property (which term as herein used shall insofar as applicable be deemed to include the common areas and facilities of the Condominium) as if they were the absolute owners thereof, free from the control of the Unit Owners and, without by the following enumeration limiting the generality of the foregoing or of any item in the enumeration, with full power and uncontrolled discretion, subject only to the limitations and conditions herein and in the provisions of said Chapter, 183A, at any time and from time to time and without the necessity of applying to any court or to the Unit Owners for leave so to do: (i) To retain the trust property, or any part or parts thereof, in the same form or forms of investment in which received or acquired by them so far and so long as they shall think fit, without liability for any loss resulting therefrom; (ii) To sell% assign, convey, transfer, exchange and otherwise deal with or dispose of, the trust property•, or any part or parts thereof, but not the common areas, free and discharged of any and all trusts, at public or private sale, to any person or persons, for cash or on credit, and in such manner, on such restrictions, stipulations, agreements and reservations as they shall deem proper, including the power —10— to take back mortgages to secure the whole or any part of the purchase price of any of'the trust property sold or transferred by them, and to execute and deliver any deed or instrument necessary to effectuate the foregoing; (iii) To purchase or otherwise acquire title to, and to rent, lease or hire from others for terms which may extend beyond the termination of this trust any property or rights to property, real or personal, and to own, manage, use and hold such property and such rights; (iv) To borrow or in any other manner raise such sum or sums of money or other property as they shall deem advisable in any manner and on any terms, and to evidence the same by notes, bonds, securities or other evidences of indebtedness, which may mature at a time or times, even beyond the possible duration of this trust, and to execute and deliver any mortgage, pledge or other instrument to secure any such borrowing; (v) To enter into any arrangement for the use or occupation of the trust property, or any part. or parts thereof, including, without thereby limiting the generality of the foregoing, leases, subleases, easements, licenses or concessions, upon such terms and conditions and with such stipulations and agreements as they shall deem desirable, even if the same extend beyond the possible duration of this trust; (vi) To invest and reinvest the trust property, or any part or parts thereof and from time to time and as often as they shall see fit to change investments, including power to invest -11- in all types of securities and o.ther property, of whatsoever nature and however denominated, all to such extent as to them - shall seem proper, and without liability for loss, even.though such property or such investments shall be of a character or in an amount .not customarily considered proper for the investment of trust funds or which does or may not produce income; (vii) To incur such liabilities, obligations and expenses, and to pay from the principal or the income of the trust property in their hands all such sums as they shall deem necessary or proper for the furtherance of the purposes of the trust; (viii) To determine as to all sums of money and other things of value received by them, whether and to what extent the same shall.be charged against principal or against income, including, without'hereby limiting the generality .of the foregoing, power to apportion any receipt or expense between principal and income, and power to determine what portion, if any, of the actual income received upon any asset purchased or acquired at a premium or any wasting investment shall be added to principal to prevent a diminution thereof upon the maturity or exhaustion of such asset or investment; (ix) To vote in such manner as they shall think fit any or all shares in any corporation or trust which shall be held as trust property, and for that purpose to give proxies, to any person or.persons or to one or more of their number, to vote, waive any notice or otherwise act in respect of any such shares; MVO u (x) To guarantee performance of the obligations of others in. any cases where they shall deem that it is to the advantage of this trust that they give such guaranty'; (xi) To maintain such offices and other places of business as they shall deem necessary or proper and to engage in business in Massachusetts or elsewhere; (xii) To employ, appoint and remove such agents, managers, officers, board of managers, brokers, employees, servants, assistants and counsel (which counsel may be a firm of which one or more of the Trustees are members) as they shall deem proper for the purchase, sale or management of the trust property, or any part or parts thereof, or for conducting the business of the trust, and may define their respective duties and fix and pay their compensation,.and the Trustees shall not be%answerable for the acts and defaults of any such person. The Trustees may delegate to any such agent, manager, officer, board,'broker, employee, servant, assistant or"counsel any or. all of their powers (including discretionary powers, except that the power to join in amending, altering, adding to, terminating or changing this Declaration of Trust and the trust hereby created shall not be delegated) all for such times and purposes as they shall deem proper. Without hereby limiting the generality of the foregoing, the Trustees may designate from' their number a Chairperson, a Treasurer, a Secretary, and such other officers as they deem fit, and may from time,to time designate one or more of their own number to be the Managing —13— Trustee or Managing Trustees, for the management and administration of the trust property and the business of the trust, or any part or parts thereof; and (xiii) Generally, in all matters not herein otherwise specified, to control, manage and dispose of the trust property as if the Trustees were the - absolute owners thereof and to do any and all acts, including the execution of any instruments, which by their performance thereof shall.be shown to be in their judgment for the best interests of the Unit Owners. Section 2. Maintenance and Repair of Units: All maintenance and replacement of and repairs to any Unit, other than to the Common Areas and Facilities contained therein, and to the furniture, furnishings and equipment therein and the maintenance, repair and replacement of utility fixtures therein serving the same, including, without limitation, interior finish walls, ceilings and floors; the interior portions of windows and window frames and interior window trim; doors; the interior portions of door frames and interior door trim; plumbing and sanitary waste fixtures and fixtures for water and other utilities; electrical fixtures and outlets; and all wires, pipes, drains and conduits for water, sewerage, electric power and light, telephone and any other utility services which are contained in and serve such Unit and the repair, maintenance or replacement of the skylight(s) shall be done by the Unit Owner at the Unit Owner's expense, excepting as otherwise specifically provided herein. —14— Section 3. Maint Areas and Facilit Thereof: -s ana Assessmen h The Trustees shall be responsible to arrange for the proper maintenance, repair and replacement of the common areas n and facilities of the Condominium and such may be done through the Managing Agent, as hereinafter provided, and any Trustees, or the Managing Agent, or any others who may be so designated by the Trustees, may approve payment of vouchers for such work, and the.expenses of such maintenance, repair and replacement shall be assessed to the Unit Owners as common expenses of the Condominium at such times and in such amounts as provided in Section 4 of these By —Laws. Section 4. Common Expenses, Profits and Funds: A. The Unit Owners shall be liable for common expenses and shall be entitled to common profits of the Condominium in proportion to their respective percentages.of beneficial interest as determined in Article II, Section 1, hereof. The Trustees, may, at any time or times,•distribute common.profits among the Unit Owners in such proportions. The Trustees may, to such extent as they deem advisable, set aside common funds of the Condominium as reserve or contingent funds, and may use the funds so set aside for reduction of indebtedness or other lawful capital purpose, or subject to the provisions of the following paragraphs B and C of this Section 4, for repair, rebuilding or —15— restoration of the trust property or for .improvements, thereto, and the funds so set aside shall not be deemed to be common profits available for distribution. B. At least thirty (30) days prior to the commencement of each fiscal year of this trust the Trustees shall estimate the common expenses expected to be incurred during such fiscal year together with a reasonable provision for contingencies and reserves, and after taking into account any undistributed common profits from prior years, shall determine the assessment to be made for such fiscal year. The Trustees shall promptly render statements to the Unit Owners for their respective shares of such assessment, according to their percentages of intere$t.in the common areas and facilities, and such statements shall, unless otherwise provided therein, be due and payable within thirty (30) days after the same are rendered. In the event that the Trustees shall determine during any fiscal year that the assessment so made is less than the common expenses actually incurred, or in the reasonable opinion of the Trustees likely to be incurred, the Trustees shall make a supplemental assessment or assessments and render statements therefor in the manner aforesaid, and such statements shall be payable and take effect as aforesaid. The Trustees may in their discretion provide for payments of statements in monthly or other installments. The amount of each such statement, together with interest thereon, if not paid when due, at a rate of eighteen (18%). percent, at the time such payment was due, shall constitute a lien on the -16- Unit of the Unit Owner assessed, pursuant to provisions of Section 6 of said Chapter 183A, except such lien shall also be subordinate to any purchase money mortgages of record granted ap part of the initial sale of such Unit by the Declarant or its resale after a mortgage foreclosure. No amendment of this exception shall affect the rights of holders of such purchase money mortgage without their consent. C. The Trustees shall expend common funds only for common expenses and lawful purposes permitted hereby, by the provisions of the Master Deed, and by provisions of said Chapter 183A. Section 5. Rebuilding and Restoration, Improvements: A. In the event of any casualty loss to the trust property the Trustees shall determine in their reasonable discretion whether or not such loss exceeds ten (10%) percent of the value of the Condominium immediately prior to the casualty, and shall notify all Unit Owners of such determination. If such loss as so determined does not exceed ten (10%) percent of such value, the Trustees shall proceed with the necessary repairs, rebuilding or restoration in the manner provided in Paragraph (a) of Section 17 of said Chapter 183A. If such loss as so determined does exceed ten (10Z) percent of such value, the Trustees shall forthwith submit to all Unit Owners (a) a form of agreement (which may be in several counterparts) by the Unit Owners authorizing the Trustees to proceed with the necessary repair, rebuilding or restoration, and (b) a copy of the provisions of said Section 17; and the Trustees shall —17— thereafter proceed in accordance with, and take such further action as they may, in their discretion, deem.advisable in order to implement the provisions of Paragraph (b) of said Section 17. B. If and whenever the Trustees shall propose to make any improvement to the common areas and facilities of the Condominium, or shall be requested in writing by the Unit Owners holding twenty-five.(25%) percent or more of the beneficial interest in this trust to make any such improvement, the Trustees shall submit to all Unit Owners (a) a form of agreement (which may be in several counterparts) specifying the improvement or improvements proposed to be made and the estimated cost thereof, and authorizing the Trustees to proceed to make the same, and (b) a copy of the provisions of Section 18 of said Chapter 183A.• Upon (a) the receipt by the Trustees of such agreement signed by Unit Owners holding seventy-five (75%) percent or more of the beneficial interest or (b) the expiration of ninety (90) days after such agreement was first submitted to the Unit Owners, whichever of said (a) and (b) shall first occur, the Trustees shall notify all Unit Owners of the aggregate percentage of beneficial interest held by Unit Owners who have then signed such agreement. If such percentage exceeds fifty (50%) percent, the Trustees shall proceed to make the .improvement or improvements specified in such agreement. C. Notwithstanding anything.in the preceding Paragraphs A and B contained, (a) in the event that any Unit Owner or Owners shall by notice*in writing to the Trustees dissent from any SVE determination of the Trustees with respect to the value of the Condominium or any other determination or action of the Trustees under this Section 5, and such dispute shall not be resolved within thirty (30) days after such notice, then either the Trustees or the dissenting Unit Owner or Owners may submit the matter to arbitration, and for that purpose one (1) arbitrator shall be designated by the Trustees, one (1) by the dissenting Unit Owner or Owners and a third by the two arbitrators so designated, and such arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association, and (b) the Trustees shall not in any event be obliged to proceed with any repair, rebuilding or - restoration, or.any improvement, unless and until they have received funds in an amount equal to the estimate of the Trustees of all costs thereof. Section 6. Rules, Regulations, Restrictions and Requirements: The Trustees may, at any time and from time to time, adopt, amend and rescind administrative rules and regulations governing the details of the operation and use of the common areas and facilities as are consistent with provisions of the Master Deed and are designed to prevent unreasonable interference with the use by the Unit Owners of their,Units and of the common areas and facilities. Section 7. Managing Agent: The Trustees may appoint a manager or managing agent to -19- r administer the Condominium, who shall perform such duties in the administration, management and operation of the Condominium, including the incurring of expenses, the making of disbursements and the keeping of accounts, as the Trustees shall from time to time determine. The Trustees, or such manager or managing agent, may appoint, employ and remove such additional agents, attorneys, accountants or employees as the Trustees may from time to time determine. This requirement shall not be amended without the written consent of all institutional lenders and such Grantor or his or her heirs or assigns so holding such mortgages. Section B. Insurance: The Trustees shall obtain and maintain, to the extent available, master policies of insurance of the following kinds, naming the Trust, the Trustees, all of the Unit Owners and their mortgagees as insureds as their interests appear: A. Casualty or physical damage insurance on the Buildings and all other insurable improvements forming part of the Condominium (including all of the .Units but not including the furniture, furnishings and other personal property of the Unit Owners therein), together with the service machinery, apparatus, equipment and installations located in the Condominium, and existing for the•provision of central services or for common use, in an amount not less'than eighty (80%) percent of their full replacement value (exclusive of foundations) as determined -20- r by the Trustees in their judgment, against (1) loss or damage by •fire and other hazards covered by the standard extended coverage endorsement, together'with coverage for the payment of common expenses with respect to damaged Units during the period of reconstruction, and (2) such other hazards and risks as the Trustees from time to time in their discretion shall determine to be appropriate, including but not limited to vandalism, malicious mischief, windstorm damage, boiler and machinery explosion or damage and plate glass damage.. All policies of casualty or physical damage insurance shall provide (1) that such policies may not be cancelled or substantially modified without at least ten (10) days' prior written notice to all of the insureds, including each Unit mortgagee, and (2).that the coverage thereof shall not be terminated for nonpayment of premiums without twenty (20) days' notice.to all of the insureds, including each Unit mortgagee. Certificates of such 'insurance and all renewals thereof, together with proof of payment of premiums, shall be delivered by the Trustees to all Unit Owners and their mortgagees upon request, at•least ten (10) days prior to the expiration of the then current policies. B. Comprehensive public liability insurance in such amounts and forms as shall be determined by the Trustees, covering the Trust, the Trustees, all of the Unit Owners and any manager or managing agent of the Condominium, with limits of not less than a single limit of $1,000,000.00.for claims for bodily injury or property damage arising out of one occurrence and a -21- limit of $100,000.00 for each occurrence, for water damage, legal liability, and with cross liability endorsement to cover liability of any insured to other insureds. C. Workmen's compensation and employer's liability insurance covering any.empioyees of the Trust. D. Such other insurance as the Trustees shall determine to be appropriate. Such master policies shall provide that all casualty loss proceeds thereunder shall be paid to the Trustees as insurance Trustees under these By-laws. The sole duty of the Trustees as such insurance Trustees shall be to receive such proceeds as are paid, and to hold, use and disburse the same for the purposes stated in this Section and Section 5 of these by-laws. If repair and restoration of the damaged portions of the Condominium is to be made, all insurance loss proceeds shall be held in shares for the Trust and the owners of damaged Units in proportion to the respective costs of repair or restoration of the damaged portions of the common areas and facilities and of each damaged Unit, with each share to be disbursed to defray the respective costs of repair or restoration of the damaged'common areas and facilities and damaged Units, and with any excess of any such share of proceeds above such cost of repair or restoration to be paid to the Trust, or Unit Owner, or mortgagee, as•.their interests may appear, for whom held upon completion of repair or restoration; but ifpursuant to Section 5 of these by-laws restoration or repair is not to be made, all -22- insurance —loss proceeds shall be held as common funds of the Trust.Such master policies shall contain, except for arson or fraud, (1) waivers or subrogation as to any claims against the Trust, the Trustees and their agents and employees, and against the Unit Owners and their respective employees, agents, and guests, (2) waivers of any defense based on the conduct of any insured, and (3) provisions to the effect that the insurer. shall not be entitled to contribution as against casualty insurance which may be purchased by individual Unit Owners as hereinafter permitted. E. Each Unit Owner or his mortgagee may obtain additional insurance at his own expense, provided that all such insurance shall contain provisions similar to those required to be contained in the Trust's master policies waiving the insurer's rights to subrogation and contribution. If the proceeds from the master policies on account of any casualty loss are reduced due to proration with insurance individually purchased by the* Unit Owner, such Unit Owner agrees to assign the proceeds of such individual insurance, to the extent of the amount of such reduction, to the Trustees to be distributed as herein provided. Each Unit Owner shall promptly notify the Trustees of all improvements made by him or her to his or her Unit, the value of which exceeds ONE THOUSAND and 00/100 ($1,000.00) DOLLARS and such Unit Owner shall pay to the Trustees as an addition to his or her share of the common expenses of the Condominium otherwise payable by him or her any increase in —23— insurance premium incurred by the Trust which results from such improvement. F. The cost of such insurance except as hereinafter• provided, shall be deemed a common expense assessable and payable. as provided in Sections 3 and 4 of these By—laws. Section 9. Sale or other Disposition of Units: Any rights with respect to sales or other dispositions of Units which may hereafter be incorporated into the Master Deed shall be exercised by the Trustees. In the event that the Trustees shall elect to purchase or lease a Unit pursuant to any such provisions, the purchase price (or rental) and the costs thereof shall constitute common expenses and the Trustees may expend common funds therefor. Section 10. Meetings: A. The Trustees shall meet annually on the date of the annual meeting of the Unit Owners and at such meeting may elect the Chairperson, Treasurer, Secretary or other officers hereinbefore provided for.. Other meetings may be called by any Trustee (if there be no more than two (2) then in office) and in such other manner as the Trustees may establish, provided, however, that written notice of each meeting stating the place, day and hour thereof shall be given at least two (2) days before such meeting to each Trustee. Such meetings shall be conducted in accordance with such rules as the Trustees may adopt. —24— , B. There shall be an annual meeting of the Units Owners on the second Saturday in September in each year at 10:00 A.M. at such reasonable place and time as may be designated by the Trustees by notice given to the Unit Owners at least seven (7) days prior to the date so designated. Special meetings of the Unit Owners may be called at any time by the Trustees and shall be called by them upon the written request of Unit Owners entitled to more than fifty (50%) of the beneficial interest hereunder. Written notice of any such meeting designating the place, day and hour thereof shall be given by the Trustees to the Unit Owners at least seven (7) days prior to the date so designated. At the annual. meeting of the Unit Owners the Trustees shall submit reports of the management and finances of the Condominium. Whenever at any meeting the Trustees propose to submit to the Unit Owners any matter with respect to which approval of or action by the Unit Owners is necessary or appropriate, the notice of such meeting shall reasonably specify such matter. Section 11. Notices to Unit Owners: Every notice to any Unit Owner required under the provisions hereof, or which may be deemed by the Trustees necessary or desirable in connection with the execution of the trust created hereby or which may be ordered in any judicial proceeding shall be deemed sufficient and binding if a written or printed copy of•such notice shall be given by one or more of the Trustees to such Unit Owner by mailing it, postage prepaid, —25— , and addressed to such Unit Owner at his or her address as it appears on the records of the Trustees, at least seven (7) days prior to the date fixed for the happening of the matter, thing or event of which such notice is given. Any notice sent to the Unit Owner hereunder will also be sent to any mortgagee of such Unit who so requests in writing and includes a stamped, self-addressed envelope, but failure to send such notice shall not affect any right or liability herein or in the Master Deed contained. Section 12. Inspection.of Books; Reports to Unit Owners:_ Books, accounts and records of the Trustees shall be open to inspection to any one or more of the Trustees and the Unit Owners at all reasonable times. The Trustees shall, as soon as reasonably possible after the close of each fiscal year, or oftener if convenient to them, submit to the Unit Owners a report of the operations of the Trustees for such year which shall include financial statements in -such summary form,and in only such detail as the Trustees shall deem proper. Any person who has been furnished with such report and shall have failed to object thereto by notice in writing to the Trustees given by registered mail within a period of one (1) month of the date of the receipt by him shall be deemed to have assented thereto. Section 13. Checks, Notes, Drafts and Other Instruments: Checks, notes, drafts and other instruments for the payment of money drawn or endorsed in the names of the Trustees or of the Trust may be signed by any one (1) Trustee, or by any -26- person•or persons to whom such power may at any time or from time to time be delegated by not less than a majorit.y of the Trustees. Section 14. Seal: The seal of the Trustees shall be circular in form, bearing the inscription -- The Yarmouth Condominium Trust — 1986 -- but such seal may be altered by the Trustees at pleasure and the Trustees may, at any time or from time to time, at their option, adopt a common or wafer seal which shall be valid for all purposes, or they may sign any instrument under seal.without being required to affix a formal, common or wafer seal. Section 15. Fiscal Year: The fiscal year of the trust shall be the year ending with the last day of December, or such other date as may from time to time be determined by the Trustees. ARTICLE VI Rights and Obligations of Third Parties Dealing with the Trustees Section 1. No purchaser, mortgagee, lender or other person dealing with the Trustees as they then appear of record in said Registry District shall be bound to ascertain or inquire further as to the persons who are then Trustees hereunder, or be affected by any notice, implied or actual, otherwise than by a certificate thereof, and such record or certificate shall be —27— conclusive evidence of the personnel of said•Trustees and of any changes therein. The receipts of the Trustees,•or any one or more of them, for moneys or things paid or delivered to them or him shall be effectual discharges therefrom to the persons paying or delivering the•same and no person from whom the Trustees, or any one or more of them, shall receive any money, property or other credit shall be required to see to the application thereof. No purchaser, mortgagee, lender or other person dealing with the Trustees or with.any real or personal property which then is or formerly was trust property shall be bound to ascertain or inquire as to the existence or occurrence of any event or purpose in or for which a sale, mortgage, pledge or charge is herein authorized or directed, or otherwise as to the purpose of regularity of any of the acts of the Trustees, or any one or more of them, purporting to be done in pursuance of any of the provisions or powers herein contained, or as to the regularity of the resignation or appointment of any Trustee, and any instrument of appointment of a new Trustee or resignation of an old Trustee purporting.to be executed by the Trustees, Unit Owners or other persons herein required to execute the same, shall be conclusive evidence in favor of any such purchaser or other person dealing with the Trustees of the matters therein recited relating to such discharge, resignation or appointment or the occasion thereof. -28- Section 2. No recourse shall at any time be had under or upon any note,.bond, contract, order, instrument, certificate,•, undertaking, obligation, covenant, or agreement, whether oral or written, made, issued or executed by the Trustees or by any agent or employee of the Trustees, or by reason of anything done or omitted to be done by or on behalf of them or any of them, against the Trustees individually, or against any such agent or employee, or against any beneficiary, either directly or indirectly, by legal or equitable proceeding, or by virtue of any suit or otherwise, and all persons extending credit to, contracting with or having any claim against the Trustees, shall look only to the trust property for payment under such contract or claim, or for the payment of any debt, damage, judgment or decree, or of any money that may otherwise become due or payable to them from the Trustees, so that neither the Trustees nor the beneficiaries, present or future, shall be personally liable therefor; provided, however, that nothing herein contained shall be deemed to limit or impair the liability of Unit Owners under provisions of Section 8 of Article III hereof or under provisions of said Chapter 183A. •Section 3. Every note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant or agreement, whether oral or written, made, issued or executed by the Trustees, or by any agent or employee of the Trustees, shall be deemed to have been entered into subject to the terms and conditions, provisions and restrictions hereof, whether or not express reference shall have been made to this instrument. —29— Section 4. This Declaration of Trust and any amendments hereto and any certificate herein required to be registered and any other certificate or paper signed by said Trustees or any of them which it may be.deemed desirable to record shall be recorded with said Registry of Deeds and such record shall be deemed conclusive evidence of the contents and effectiveness thereof according to the tenor thereof; and all persons dealing in any manner'whatsoever with the Trustees, the trust property or any beneficiary thereunder shall be held to have notice of any alteration or amendment of this Declaration of Trust, or change of Trustee or Trustees, when.the'same shall be recorded with said Registry of Deeds. Any certificate signed by the Trustees in office at the time, setting forth as facts any matters affecting the trust, including statements as to who are the beneficiaries, as to what action has been taken by the beneficiaries, and as to matters determining the authority of the Trustees to do any act, when duly acknowledged and recorded with said Registry of Deeds shall be conclusive evidence as to the existence of such alleged facts in favor of all third persons, including the Trustees, acting in reliance thereon. Any certificate executed by any Trustee hereunder, or by a majority of the Trustees hereunder, setting forth the existence of any facts, the existence of which is necessary to authorize the execution of any instrument or the taking of any action by such Trustee or majority, as the case may be, shall, as to all' persons.acting in good faith in reliance.thereon be -30- conclusive evidence of the truth of the statements made in such certificate and of the existence of the facts therein setforth. ARTICLE VII Amendments and Termination Section 1. The Trustees, with the consent in writing of Unit Owners entitled to not less than seventy-five (75%) percent of the beneficial interest hereunder, may at any time and from time to time amend, alter, add to, or change this Declaration of Trust in any manner or to any extent, the Trustees first, however, being duly indemnified to their reasonable satisfaction against outstanding obligations and liabilities; provided always, however, that no such.amendment, alteration, addition or change (a) according to the purport of which the percentage of the beneficial interest hereunder of any Unit Owner would be altered or in any manner or to any extent whatsoever modified or affected, so as to be different from the percentage of.the individual interest of such Unit Owner in the common areas and facilities as setforth in the toaster Deed, or (b) which would render this trust contrary to or inconsistent with any requirements or provisions of said Chapter 183A, shall be valid or effective. Any amendment, alteration, addition or change pursuant to the foregoing provisions of this paragraph shall become effective upon the recording with said Registry of Deeds -31- a v of an instrument of amendment, alteration, addition or change, as the case may be, signed, sealed and acknowledged in the manner required in Massachusetts for the acknowledgement of deeds, by any -two (2) Trustees, if there be at least two'(2) then in office, setting forth in full the amendment, alteration, addition or change and reciting the consent of the Unit Owners herein required to consent thereto. Such instrument, so executed and recorded, shall be conclusive evidence of the existence of all facts and of compliance with all prerequisites to the validity of such amendment, alteration, addition or change, whether stated in such instrument or not, upon all questions as to title or affecting the rights of third persons and for all other purposes. Nothing in this paragraph contained shall be construed as making it obligatory upon the Trustees to amend, alter, add to or change the Declaration of Trust upon obtaining the necessary consent as hereinbefore provided. Section 2. The Trust hereby created shall terminate only upon the removal of the Condominium from the provisions of said Chapter 183A in accordance with the procedure therefor setforth in Section 19 of said Chapter. Section 3. Upon the termination of this Trust, the Trustees may, subject to and in accordance with provisions of said Chapter 183A, sell and convert into money the whole of the trust property, or any part or parts thereof, and, after,paying or retiring all known liabilities and obligations of the Trustees and providing for indemnity against any other -32- . .P outstanding liabilities and obligations, shall divide the proceeds thereof among, and distribute in kind, at valuations made by,them which shall be conclusive, all other property then held by them in trust hereunder, to the Unit Owners according to their respective percentages of beneficial interest hereunder. And in making any sale under this provision the Trustees shall have power to sell by public auction or private contract and to buy in or rescind or vary any contract of sale and to resell without being answerable for loss and, for said purposes, to do all things, including the execution and delivery of instruments, as may be their performance thereof be shown to be in their judgment necessary or desirable in connection therewith. The powers of sale and all other powers herein given to the Trustees shall continue as to all property at any time remaining in their hands or ownership, even though all times herein fixed for distribution of trust'property may have passed. ARTICLE VIII Construction and Interpretation In the construction hereof, whether or not so expressed, words used in the singular or in the plural respectively include both the plural and singular, words denoting males include females, and words denoting persons include individuals, firms, associations, companies (joint stock or otherwise), trusts and corporations unless a contrary intention is to be inferred from -33- or required by the subject matter or context. The cover, title, headings of different parts hereof, the table of contents and the marginal notes, if any, are inserted only for convenience of reference and are not to be taken to be any part hereof or to control or affect the meaning, construction, interpretation or effect hereof. All the trusts, powers and provisions herein contained shall take effect and be construed according to the law of the Commonwealth of Massachusetts. Unless the context otherwise indicates, words defined in said Chapter 183A shall have the same meaning herein. IN WITNESS WHEREOF the aforesaid Trustees have hereunto set their hands and seal on the day and year first hereinabove setforth. Barnstable, as. ROBERT J. OSTELLINO ROBERT A. OSTELLINO COMMONWEALTH OF MASSACHUSETTS August , 1986 Then personally appeared the above named Robert J. Ostellino and Robert A. Ostellino, Trustees and acknowledged the foregoing instrument to be their free act and deed, before me, My commission expires: Notary Public -34- r or required by the subject matter or context. The cover, title, headings of different parts hereof, the table of contents and the marginal notes, if any, are inserted only for convenience of reference and are not to be taken to be any part hereof or to control or affect the meaning, construction, interpretation or effect hereof. All the trusts, powers and provisions herein contained shall take effect and be construed according to the law of the Commonwealth of Massachusetts. Unless the context otherwise indicates, words defined in said Chapter 183A shall have the same meaning herein. IN WITNESS WHEREOF the aforesaid Trustees have hereunto set their hands and seal on the day and year first herefnabove setforth. ROBERT J. OSTELLINO ROBERT A. OSTELLINO COMMONWEALTH OF MASSACHUSETTS �i Barnstable, as. August 1986 i Then personally appeared the above named Robert J. iOstellino and Robert A. Ostellino, Trustees and acknowledged the i i foregoing instrument to be their free act and deed, before me, i i Notary Public My commission expires: —34— THE YARMOUTH CONDOMINIUM TRUST THIS DECLARATION OF TRUST made this day of August, 1986, at South Yarmouth in the County of Barnstable and Commonwealth of Massachusetts by ROBERT J. OSTELLINO and ROBERT A. OSTELLINO, both of 759 Main Street, South Yarmouth, Barnstable County, Massachusetts (hereinafter called the i Trustees, which term and any pronoun referred thereto shall be deemed to include their successors in trust hereunder and to mean the trustees of the Trust at the time being hereunder wherever the context so permits). ARTICLE I Name of Trust The trust hereby created shall be known as The Yarmouth Condominium Trust, and under that name, so far as legal, convenient and practicable, shall all business carried on by the Trustees to be conducted and shall all instruments in writing by the Trustees be executed. TICLE II The Trust and Its Purposes Section 1. All of the rights and powers in and with respect to the common areas and facilities of The Yarmouth Condominium ("Condominium") established by a Master Deed of even date and recorded herewith which are by virtue of provisions of Chapter 183A of the Massachusetts General Laws conferred upon or exercisable by the organization of unit owners of said Condominium, and all property, real and personal, tangible and intangible, conveyed to the Trustees hereunder shall vest in the Trustees as joint tenants with right of survivorship as Trustees of this trust, in trust to exercise, manage, administer and dispose of the same and to receive the income thereof for the benefit of the owners of record from time to time of the units and interests therein of said Condominium (hereinafter called the Unit Owners), according to the schedule of undivided beneficial interests setforth in Exhibit "C" of said Master Deed, which schedule is incorporated herein by reference, and in accordance with the provisions of said Chapter 183A, this trust being the organization of the Unit Owners established pursuant to provisions of said Chapter 183A for the purposes therein setforth. Section 2. It is hereby expressly declared that a trust and not a partnership has been created and that the Unit Owners are cestuis que trustent, and not partners or associates nor in any other relation whatever between themselves with respect to the trust property, and hold no relation to the Trustees other than of cestuis que trustent, with only such rights as are conferred upon them as such cestuis que trustent hereunder and under and pursuant to the provisions of said Chapter 183A of the General Laws. Section 3. Except as otherwise herein defined or as may be required by the context all terms shall have the same meaning as setforth in said Master Deed. ARTICLE III The Trustees I� Section 1. There shall at all times be Trustees consisting of such number, not less than two (2) nor more than five (5), as shall be determined from time to time by vote of the Unit Owners entitled to not less than fifty-one (51%) percent of the beneficial interest hereunder. If and whenever i the number of such Trustees shall become less than two (2), or less than the number of Trustees last determined as aforesaid, a vacancy or vacancies in said office shall be deemed to exist. Each such vacancy shall be filled by instrument in writing setting forth (a) the appointment of a natural person to act as such Trustee, signed (i) by Unit Owners entitled to not less than fifty-one (51%) percent of the beneficial interest hereunder, or (ii) if Unit Owners entitled to such percentage have not within thirty (30) days after the occurrence of any such vacancy made such appointment, by a majority of the then remaining Trustee, or by the sole remaining Trustee if only one, and (b) the acceptance of such appointment, signed and i -3- I I acknowledged by the person so appointed. Such appointment shall become effective upon the recording with the Barnstable County Registry of Deeds of a certificate of such appointment signed by a majority of the then remaining Trustees or Trustee, if any there be still in office, or by Unit Owners holding at least fifty-one (51%) percent of the beneficial interest, if there be no such Trustee, together with such acceptance, and such person shall then be and become such Trustee and shall be vested with the title to the trust property jointly with the remaining or surviving Trustees or Trustee without the necessity of any act i� of transfer or conveyance. If for any reason any vacancy in the office of Trustee shall continue for''more than sixty (60) days and shall at the end of that time remain unfilled, a Trustee or Trustees to fill such vacancy or vacancies may be appointed by any court of competent jurisdiction upon the application of any Unit Owner or Trustee and notice to all Unit Owners and Trustees 'i and to such other, if any, parties in interest to whom the court may direct that notice be given. The foregoing provisions of this section to the contrary notwithstanding, despite any vacancy in the office of Trustee, however caused and for whatever duration, the remaining or surviving Trustees, subject to the provisions of the immediately following section, shall continue to exercise and discharge all of the powers, discretions and duties hereby conferred or imposed upon the Trustees. I� i� I ME Section 2. In any matters relating to the administration of the trust hereunder and the exercise of the powers hereby conferred, the Trustees may act by majority vote at any duly called meeting at which a quorum is present, as provided in Paragraph A of Section 10 of Article V; provided, however, that i in no event shall a majority consist of less than one (1) Trustee hereunder, and, if and whenever the number of Trustees li hereunder shall become less than one (1), then no Trustee shall have any power or authority whatsoever to act with respect to I I� the administration of the trust hereunder or to exercise any of the powers hereby conferred except as provided in Section 1 of Article III. The Trustees may also act without a meeting by instrument signed by a majority of their number. j Section 3. Any Trustee may resign at any time by instrument in writing, signed and acknowledged in the manner required in Massachusetts for the acknowledgement of deeds and �i li such resignation shall take effect upon the recording of such I instrument with the aforesaid Barnstable County Registry of Deeds. Section 4. No Trustee named or appointed as hereinbefore provided, whether as original Trustee or as successor to or as i substitute for another, shall be obliged to give any bond or surety or other security for the performance of any of his duties hereunder, provided, however, that Unit Owners entitled jto not less than fifty—one (51%) percent of the beneficial interest hereunder may, at any time, by instrument in writing i l signed by them and delivered to the Trustee or Trustees —5— affected, require that any one or more of the Trustees shall give bond in such amount and with such sureties as shall be specified in such instrument. All expenses incident to any such bond shall be charged as a common expense of the Condominium. Section 5. No Trustee shall be entitled to any renumeration for his services other than reasonable renumeration for extraordinary or unusual services, legal or otherwise, rendered by him or her in connection with the trusts hereof, all as shall be from time to time fixed and determined by the Trustees, and such renumeration shall be a common expense of the ! Condominium. I j Section 6. No Trustee hereinbefore named or appointed as hereinbefore provided shall under any circumstances or in any event be held liable or accountable out of his or her personal assets or be deprived of compensation by reason of any action :i taken, suffered or omitted in good faith or be so liable or accountable for more money or other property than he or she actually receives, or for allowing one or more of the other Trustees to have possession of the trust books or property, or be so liable, accountable or deprived by reason of honest errors in Judgment or mistakes of fact or. law or by reason of the I existence of any personal or adverse interest or by reason of anything except his or her own personal and willful malfeasance and defaults. Section 7. No Trustee shall be disqualified by his or her office from contracting or dealing with the Trustees or with one or more Unit Owners (whether directly or indirectly because of his or her interest individually or the Trustees' interest or any Unit Owner's interest in any corporation, firm, trust or other organization connected with such contracting or dealing or because of any other reason), as vendor, purchaser, or otherwise, nor shall any such dealing, contract or arrangement ientered into in respect to this trust in which any Trustee shall be in any way interested be avoided nor shall any Trustee so IIdealing or contracting or being so interested be liable to account for any profit realized by any such dealing, contract or I, arrangement by reason of such Trustee's holding office or of the j fiduciary relation hereby established, provided the Trustee �I shall act in good faith and shall disclose the nature of his or it her interest before the dealing, contract or arrangement is entered into. Section 8. The Trustees and each of them shall be entitled to indemnity both out of the trust property and by the Unit Owners against any liability incurred by them or any of them in the execution hereof, including without limiting the generality of the foregoing, liabilities in contract and in tort and liabilities for damages, penalties and fines. Each Unit Owner shall be personally liable for all sums lawfully assessed for his or her proportionate share of any claims involving the trust property in excess thereof, all as provided in Sections 6 —7— and 13 of said Chapter 183A. Nothing in this paragraph contained shall be deemed, however, to limit in any respect the powers granted to the Trustees in this instrument. Section 9. Each Trustee shall serve for a term of one year from the date of recording in the aforesaid Registry of Deeds of his or her acceptance, and until his or her successor is appointed and qualified to serve, except that the terms of the original Trustees hereunder, in order of signature'hereto, shall be for one and two years respectively from the date this trust is registered with the aforesaid Registry of Deeds, subject however to the provisions of the following paragraph. Appointment of successor Trustees shall be made in the manner setforth in Article III, Section 1 hereof to fill any vacancy in such office. Notwithstanding the foregoing, without the consent of the Grantor of the Master Deed, there shall, in no event, be more than five (5) Trustees at any time in office, nor shall the original Trustees or their successors be replaced without the consent of the Grantor until the earlier of the following events shall occur: (a) one (1) month after the sale by the Grantor of more than seventy—five (75%) percent of the beneficial interest herein or (b) two (2) years after the first unit of the Condominium is conveyed by the Grantor. This paragraph of Section 9 may not be amended without the consent of the Grantor of the Master Deed. For purposes of this Section 9, ownership of beneficial interests by a trust in which the Grantor is a I. Trustee shall be deemed ownership by the Grantor. IM ARTICLE IV Beneficiaries and the Beneficial Interest in the Trust Section 1. The cestuis que trustent shall be the. Unit Owners of the Condominium for the time being. The beneficial interest in the trust hereunder shall be divided among the Unit Owners in the percentages of undivided beneficial interest I' pertaining to the Units of the Condominium, as setforth in i Section 1 of Article II hereof. Section 2. The beneficial interest of each Unit of the Condominium shall be held and exercised as a unit and shall not be divided among several owners of any such Unit. To that end, whenever any of said Units is owned of record by more than one person, the several owners of such Unit shall (a) determine and i it designate which one of such owners shall be authorized and entitled to cast votes, execute instruments and otherwise exercise the rights appertaining to such Unit hereunder, and (b) notify the Trustees of such designation by a note in writing signed by all of the record owners of such Unit. Any such designation shall take effect upon receipt by the Trustees and may be changed at any time and from time to time by notice as aforesaid. In the absence of any such notice of designation, the Trustees may designate any one such owner for such purposes. ARTICLE V By -Laws The provisions of this Article V shall constitute the i! By -Laws of this trust. Ij -9- I I � Section 1, Powers of the Trustees: The Trustees shall, subject to and in accordance with all applicable provisions of said Chapter 183A, have the absolute control, management and disposition of the trust property (which term as herein used shall insofar as applicable be deemed to include the common areas and facilities of the Condominium) as 'if they were the absolute owners thereof, free from the control of the Unit Owners and, without by the following enumeration limiting the generality of the foregoing or of any item in the enumeration, with full power and uncontrolled discretion, i subject only to.the limitations and conditions herein and in the provisions of said Chapter 183A, at any time and from time to I time and without the necessity of applying to any court or to the Unit Owners for leave so to do: (i) To retain the trust property, or any part or parts �i thereof, in the same form or forms of investment in which received or acquired by them so far and so long as they shall I think fit, without liability for any loss resulting therefrom; (if) To sell, assign, convey, transfer, exchange and otherwise deal with or dispose of, the trust property, or any part or parts thereof, but not the common areas, free and discharged of any and all trusts, at public or private sale, to any person or persons, for cash or on credit, and in.such manner, on such restrictions, stipulations, agreements and reservations as they shall deem proper, including the power t I i !' -10- i to take back mortgages to secure the whole or any part of the purchase price of any of the trust property sold or transferred by them, and to execute and deliver any deed or instrument necessary to effectuate the foregoing; (iii) To purchase or otherwise acquire title to, and to rent, lease or hire from others for terms which may extend beyond the termination of this trust any property or rights to i property, real or personal, and to own, manage, use and hold such property and such rights; (iv) To borrow or in any other manner raise such sum or I sums of money or other property as they shall deem advisable in any manner and on any terms, and to evidence the same by notes, bonds, securities or other evidences of indebtedness, which may mature at a time or times, even beyond the possible duration of this trust, and to execute and deliver any mortgage, pledge or other instrument to secure any such borrowing; (v) To enter into any arrangement for the use or occupation of the trust property, or any part or parts thereof, including, without thereby limiting the generality of the foregoing, leases, subleases, easements, licenses or concessions, upon such terms and conditions and with such stipulations and agreements as they shall deem desirable, even if the same extend beyond the possible duration of this trust; (vi) To invest and reinvest the trust property, or any part or parts thereof and from time to time and as often as they shall see fit to change investments, including power to invest i' u i! —11— I in all types of securities and other property, of whatsoever nature and however denominated, all to such extent as to them shall seem proper, and without liability for loss, even though such property or such investments shall be of a character or in an amount not customarily considered proper for the investment of trust funds or which does or may not produce income; (vii) To incur such liabilities, obligations and expenses, and to pay from the principal or the income of the trust property in their hands all such sums as they shall deem necessary or proper for the furtherance of the purposes of the I jj trust; (viii) To determine as to all'sums of money and other things of value received by them, whether and to what extent the same shall be charged against principal or against income, including, without hereby limiting the generality of the :I foregoing, power to apportion any receipt or expense between principal and income, and power to determine what portion, if any, of the actual income received upon any asset purchased or acquired at a premium or any wasting investment shall be added to principal to prevent a diminution thereof upon the maturity or exhaustion of such asset or investment; (ix) To vote in such manner as they shall think fit any or all shares in any corporation or trust which shall be held as trust property, and for that purpose to give proxies, to any person or persons or to one or more of their number, I waive any notice or otherwise act in respect of any —12— to vote, such shares; (x) To guarantee performance of the obligations of others in any cases where they shall deem that it is to the advantage of this trust that they give such guaranty; (xi) To maintain such offices and other places of business as they shall deem necessary or proper and to engage in business in Massachusetts or elsewhere; I� I (xii) To employ, appoint and remove such agents, managers, officers, board of managers, brokers, employees, servants, assistants and counsel (which counsel may be a firm of which one or more.of the Trustees are members) as they shall deem proper for the purchase, sale or management of the trust property, or any part or parts thereof, or for conducting the business of the trust, and may define their respective duties and fix and pay their compensation, and the Trustees shall not be answerable for the acts and defaults of any such person. The Trustees may delegate to any such agent, manager, officer, board, broker, employee, servant, assistant or counsel any or all of their powers (including discretionary powers, except that the power to join in amending, altering, adding to, terminating i� or changing this Declaration of Trust and the trust hereby i created shall not be delegated) all for such times and purposes as they shall deem proper. Without hereby limiting the generality of the foregoing, the Trustees may designate from their number a Chairperson, a Treasurer, a Secretary, and such other officers as they deem fit, and may from time to time designate one or more of their own number to be the Managing —13— Trustee or Managing Trustees, for the management and administration of the trust property and the business of the trust, or any part or parts thereof; and (xiii) Generally, in all matters not herein otherwise specified, to control, manage and dispose of the trust property as if the Trustees were the absolute owners thereof and to do any and all acts, including the execution of any instruments, which by their performance thereof shall be shown to be in their judgment for the best interests of the Unit Owners. Section 2. Maintenance and Repair of Units: All maintenance and replacement of and repairs to any j Unit, other than to the Common Areas and Facilities contained therein, and to the furniture, furnishings and equipment therein and the maintenance, repair and replacement of utility fixtures therein serving the same, including, without limitation, ' interior finish walls, ceilings and floors; the interior portions of windows and window frames and interior window trim; doors; the interior portions of door frames and interior door I trim; plumbing and sanitary waste fixtures and fixtures for i water and other utilities; electrical fixtures and outlets; and all wires, pipes, drains and conduits for water, sewerage, electric power and light, telephone and any other utility services which are contained in and serve such Unit and the repair, maintenance or replacement of the skylight(s) shall be done by the Unit Owner at the Unit Owner's expense, excepting as is ' �I otherwise specifically provided herein. i —14— Section 3. Maintenance, Repair and Replacement of Common Areas and Facilities and Assessment of Common Expenses hereo : The Trustees shall be responsible to arrange for the proper maintenance, repair and replacement of the common areas and facilities of the Condominium and such may be done through the Managing Agent, as hereinafter provided, and any Trustees, or the Managing Agent, or any others who may be so designated by the Trustees, may approve payment of vouchers for such work, and the expenses of such maintenance, repair and replacement shall i be assessed to the Unit Owners as common expenses of the Condominium at such times and in such amounts as provided in Section 4 of these By —Laws. Section 4. Common Expenses, Profits and Funds: A. The Unit Owners shall be liable for common expenses i and shall be entitled to common profits of the Condominium in proportion to their respective percentages of beneficial interest as determined in Article II, Section 1, hereof. The Trustees, may, at any time or times, distribute common profits among the Unit Owners in such proportions. The Trustees may, to such extent as they deem advisable, set aside common funds of the Condominium as reserve or contingent funds, and may use the funds so set aside for reduction of indebtedness or other lawful capital purpose, or subject to the provisions of the following paragraphs B and C of this Section 4, for repair, rebuilding or —15— restoration of the trust property or for improvements, thereto, and the funds so set aside shall not be deemed to be common profits available for distribution. B. At least thirty (30) days prior to the commencement of each fiscal year of this trust the Trustees shall estimate the common expenses expected to be incurred during such fiscal year together with a reasonable provision for contingencies and I reserves, and after taking into account any undistributed common i profits from prior years, shall determine the assessment to be made for such fiscal year. The Trustees shall promptly render statements to the Unit Owners for their respective shares of j such assessment, according to their percentages of interest in the common areas and facilities, and such statements shall, unless otherwise provided therein, be due and payable within thirty (30) days after the same.are rendered. In the event that I' jl the Trustees shall determine during any fiscal year that the j assessment so made is less than the common expenses actually incurred, or in the reasonable opinion of the Trustees likely to be incurred, the Trustees shall make a supplemental assessment or assessments and render statements therefor in the manner aforesaid, and such statements shall be payable and take effect as aforesaid. The Trustees may in their discretion provide for Ii payments of statements in monthly or other installments. The amount of each such statement, together with interest thereon, if not paid when due, at a rate of eighteen (18%) percent, at I the time such payment was due, shall constitute a lien on the I' I I ii I� -16- Unit of the Unit Owner assessed, pursuant to provisions of Section 6 of said Chapter 183A, except such lien shall also be subordinate to any purchase money mortgages of record granted as part of the initial sale of such Unit by the Declarant or its resale after a mortgage foreclosure. No amendment of this exception shall affect the rights of holders of such purchase money mortgage without their consent. i C. The Trustees shall expend common funds only for common expenses and lawful purposes permitted hereby, by the provisions of the Master Deed, and by provisions of said Chapter 183A. I Section 5. Rebuilding and Restoration, Improvements: i A. In the event of any casualty loss to the trust �i property the Trustees shall determine in their reasonable discretion whether or not such loss exceeds ten (10%) percent of H the value of the Condominium immediately prior to the casualty, and shall notify all Unit Owners of such determination. I£ such i loss as so determined does not exceed ten (10%) percent of such value, the Trustees shall proceed with the necessary repairs, rebuilding or restoration in the manner provided in Paragraph (a) of Section 17 of said Chapter 183A. If such loss as so determined does exceed ten (10%) percent of such value, the i Trustees shall forthwith submit to all Unit Owners (a) a form of agreement (which may be in several counterparts) by the Unit Owners authorizing the Trustees to proceed with the necessary repair, rebuilding or restoration, and (b) a copy of the I provisions of said Section 17; and the Trustees shall —17— thereafter proceed in accordance with, and take such further action as they may, in their discretion, deem advisable in order to implement the provisions of Paragraph (b) of said Section 17. B. If and whenever the Trustees shall propose to make any improvement to the common areas and facilities of the Condominium, or shall be requested in writing by the Unit Owners holding twenty—five (25%) percent or more of the beneficial interest in this trust to make any such improvement, the Trustees shall submit to all Unit Owners (a) a form of agreement (which may be in several.counterparts) specifying the improvement or.improvements proposed to be made and the estimated cost thereof, and authorizing the Trustees to proceed i to make the same, and (b) a copy of the provisions of Section 18 of said Chapter 183A. Upon (a) the receipt by the Trustees of such agreement signed by Unit Owners holding seventy—five (75%) percent or more of the beneficial interest or (b) the expiration of ninety (90) days after such agreement was first submitted to the Unit Owners, whichever of said (a) and (b) shall first occur, the Trustees shall notify all Unit Owners of the aggregate percentage of beneficial interest held by Unit Owners Ij who have then signed such agreement. If such percentage exceeds I� fifty (SOR) percent, the Trustees shall proceed to make the improvement or improvements specified in such agreement. i C. Notwithstanding anything in the preceding Paragraphs A I� and B contained, (a) in the event that any Unit Owner or Owners Ij shall by notice in writing to the Trustees dissent from any j I 51-M 'determination of the Trustees with respect to the value of the Condominium or any other determination or action of the Trustees under this Section 5, and such dispute shall not be resolved within thirty (30) days after such notice, then either the Trustees or the dissenting Unit Owner or Owners may submit the matter to arbitration, and for that purpose one (1) arbitrator shall be designated by the Trustees, one (1) by the dissenting Unit Owner or Owners and a third by the two arbitrators so designated, and such arbitration shall be conducted in accordance with the rules and procedures of the American i' Arbitration Association, and (b) the Trustees shall not in any event be obliged to proceed with any repair, rebuilding or i restoration, or any improvement, unless and until they have received funds in an amount equal to the estimate of the I; Trustees of all costs thereof. Section 6. Rules, Regulations, Restrictions and Requirements• The Trustees may, at any time and from time to time, adopt, amend and rescind administrative rules and regulations governing the details of the operation and•use of the common areas and facilities as are consistent with provisions of the Master Deed and are designed to prevent unreasonable interference with the use by the Unit Owners of their Units and of the common areas and facilities. Section 7. Managing Agent: The Trustees may appoint a manager or managing agent to —19— administer the Condominium, who shall perform such duties in the ' administration, management and operation of the Condominium, including the incurring of expenses, the making of disbursements and the keeping of accounts, as the Trustees shall from time to time determine. The Trustees, or such manager or managing agent, may appoint, employ and remove such additional agents, li attorneys, accountants or employees as the Trustees may from time to time determine. This requirement shall not be amended I without the written consent of all institutional lenders and such Grantor or his or her heirs or assigns so holding such mortgages. Section 8. Insurance: The Trustees shall obtain and maintain, to the extent available, master policies of insurance of the following kinds, j naming the Trust, the Trustees, all of the Unit Owners and their mortgagees as insureds as their interests appear: A. Casualty or physical damage insurance on the Buildings j and all other insurable improvements forming part of the Condominium (including all of the Units but not including the It !; furniture, furnishings and other personal property of the Unit Owners therein), together with the service machinery, apparatus, equipment and installations located in the Condominium, and Iexisting for the provision of central services or for common I� use, in an amount not less than eighty (80%) percent of their full replacement value (exclusive of foundations) as determined -20- ' I b the Trustees in their y judgment, against (1) loss or damage by fire and other hazards covered by the standard extended coverage endorsement, together with coverage for the payment of common expenses with respect to damaged Units during the period of reconstruction, and (2) such other hazards and risks as the Trustees from time to time in their discretion shall determine i to be appropriate, including but not limited to vandalism, malicious mischief, windstorm damage, boiler and machinery explosion or damage and plate glass damage. All policies of casualty or physical damage insurance shall provide (1) that such policies may not be cancelled or substantially modified without at least ten (10) days' prior written notice to all of the insureds, including each Unit mortgagee, and (2) that the coverage thereof shall not be terminated for nonpayment of premiums without twenty (20) days' notice to all of the insureds, including each Unit mortgagee. Certificates of such insurance and all renewals thereof, together with proof of !! payment of premiums, shall be delivered by the Trustees to all I' j Unit Owners and their mortgagees upon request, at least ten (10) it days prior to the expiration of the then current policies. B. Comprehensive public liability insurance in such I amounts and forms as shall be determined by the Trustees, ii covering the Trust, the Trustees, all of the Unit Owners and any manager or managing agent of the Condominium, with limits of not !� less than a single limit of $1,000,000.00 for claims for bodily linjury or property damage arising out of one occurrence and a —21— limit of $100,000.00 for each occurrence, for water damage, legal liability, and with cross liability endorsement to cover liability of any insured to other insureds. C. Workmen's compensation and employer's liability insurance covering any employees of the Trust. D. Such other insurance as the Trustees shall determine to be appropriate. Such master policies shall provide that all casualty loss proceeds thereunder shall be paid to the Trustees as insurance i Trustees under these By—laws. The sole duty of the Trustees as it such insurance Trustees shall be to receive such proceeds as are it paid, and to hold, use and disburse the same for the purposes it stated in this Section and Section 5 of these by—laws. If , repair and restoration of the damaged portions of the Condominium is to be made, all insurance loss proceeds shall be held in shares for the Trust and the owners of damaged Units in proportion to the respective costs of repair or restoration of the damaged portions of the common areas and facilities and of each damaged Unit, with each share to be disbursed to defray the I respective costs of repair or restoration of the damaged common areas and facilities and damaged Units, and with any excess of any such share of proceeds above such cost of repair or restoration to be paid to the Trust, or Unit Owner, or mortgagee, as their interests may appear, for whom held upon II completion of repair or restoration; but if pursuant to Section j; 5 of these by—laws restoration or repair is not to be made, all i I —22— insurance -loss proceeds shall be held as common funds of the Trust. Such master policies shall contain, except for arson or fraud, (1) waivers or subrogation as to any claims against the Trust, the Trustees and their agents and employees, and against the Unit Owners and their respective employees, agents, and guests, (2) waivers of any defense based on the conduct of any insured, and (3) provisions to the effect that the insurer shall not be entitled to contribution as against casualty insurance I �I which may be purchased by individual Unit Owners as hereinafter permitted. II I E. Each -Unit Owner or his mortgagee may obtain additional insurance at his own expense, provided that all such insurance shall contain provisions similar to those required to be contained in the Trust's master policies waiving the insurer's rights to subrogation and contribution. If the proceeds from the master policies on account of any casualty loss are reduced due to proration with insurance individually purchased by the Unit Owner, such Unit Owner agrees to assign the proceeds of such individual insurance, to the extent of the amount of such I reduction, to the Trustees to be distributed as herein i provided. Each Unit Owner shall promptly notify the Trustees of all improvements made by him or her to his or her Unit, the value of which exceeds ONE THOUSAND and 00/100 ($1,000.00) iDOLLARS and such Unit Owner shall pay to the Trustees as an addition to his or her share of the common expenses of the i li Condominium otherwise payable by him or her any increase in j I i -23- I insurance premium incurred by the Trust which results from such improvement. F. The cost of such insurance except as hereinafter provided, shall be deemed a common expense assessable and payable as provided in Sections 3 and 4 of these By—laws. Section 9. Sale or other Disposition of Units: Any rights with respect to sales or other dispositions of Units which may hereafter be incorporated into the Master Deed shall be exercised by the Trustees. In the event that the Trustees shall elect to purchase or lease a Unit pursuant to any such provisions, the purchase price (or rental) and the costs thereof shall constitute common expenses and the Trustees may expend common funds therefor. Section 10. Meetings: A. The Trustees shall meet annually on the date of the annual meeting of the Unit Owners and at such meeting may elect the Chairperson, Treasurer, Secretary or other officers hereinbefore provided for. Other meetings may be called by any Trustee (if there be no more than two (2) then in office) and in such other manner as the Trustees may establish, provided, however, that written notice of each meeting stating the place, I day and hour thereof shall be given at least two (2) days before such meeting to each Trustee. Such meetings shall be conducted in accordance with such rules as the Trustees may adopt. —24— B. There shall be an annual meeting of the Units Owners on the second Saturday in September in each year at 10:00 A.M. at such reasonable place and time as may be designated by the Trustees by notice given to the Unit Owners at least seven (7) days prior to the date so designated. Special meetings of the Unit Owners may be called at any time by the Trustees and shall be called by them upon the written request of Unit Owners j� entitled to more than fifty (50%) of the beneficial interest hereunder. Written notice of any such meeting designating the place, day and hour thereof shall be given by the Trustees to the Unit Owners at least seven (7) days prior to the date so designated. At the annual meeting of the Unit Owners the Trustees shall submit reports of the management and finances of the Condominium. Whenever at any meeting the Trustees propose to submit to the Unit Owners any matter with respect to which approval of or action by the Unit Owners is necessary or appropriate, the notice of such meeting shall reasonably specify such matter. Section 11. Notices to Unit Owners: Every notice to any Unit Owner required under the provisions hereof, or which may be deemed by the Trustees necessary or desirable in connection with the execution of the trust created hereby or which may be ordered in any judicial proceeding shall be deemed sufficient and binding if a written or printed copy of such notice shall be given by one or more of the Trustees to such Unit Owner by mailing it, postage prepaid, �I -25— and addressed to such Unit Owner at his or her address as it appears on the records of the Trustees, at least seven (7) days prior to the date fixed for the happening of the matter, thing or event of which such notice is given. Any notice sent to the Unit Owner hereunder will also be sent to any mortgagee of such Unit who so requests in writing and includes a stamped, self-addressed envelope, but failure to send such notice shall not affect any right or liability herein or in the Master Deed contained. Section 12. Inspection of Books; Reports to Unit Owners: Books, accounts and records of the Trustees shall be open to inspection to any one or more of the Trustees and the Unit Owners at all reasonable times. The Trustees shall, as soon as reasonably possible after the close of each fiscal year, or ;I oftener if convenient to them, submit to the Unit Owners a report of the operations of the Trustees for such year which shall include financial statements in such summary form and in J only such detail as the Trustees shall deem proper. Any person I who has been furnished with such report and shall have failed to I l object thereto by notice in writing to the Trustees given by registered mail within a period of one (1) month of the date of the receipt by him shall be deemed to have assented thereto. Section 13. Checks, Notes, Drafts and Other Instruments: Checks, notes, drafts and other instruments for the Ijpayment of money drawn or endorsed in the names of the Trustees or of the Trust may be signed by any one (1) Trustee, or by any -26- O person or persons to whom such power may at any time or from time to time be delegated by not less than a majority of the Trustees. Section 14. Seal: The seal of the Trustees shall be circular in form, bearing the inscription -- The Yarmouth Condominium Trust — 1986 -- but such seal may be altered by the Trustees at pleasure and 11 the Trustees may, at any time or from time to time, at their i option, adopt a common or wafer seal which shall be valid for �i all purposes, or they may sign any instrument under seal without being required to affix a formal, common or wafer seal. Section 15. Fiscal Year:• The fiscal year of the trust shall be the year ending with the last day of December, or such other date as may from time to time be determined by the Trustees. ARTICLE VI Rights and Obligations of Third i Parties Dealing with the Trustees i Section 1. No purchaser, mortgagee, lender or other person dealing with the Trustees as they then appear of record !I in said Registry District shall be bound to ascertain or inquire further as to the persons who are then Trustees hereunder, or be affected by any notice, implied or actual, otherwise than by a certificate thereof, and such record or certificate shall be i —Y7— i conclusive evidence of the personnel of said Trustees and of any changes therein. The receipts of the Trustees, or any one or more of them, for moneys or things paid or delivered to them or him shall be effectual discharges therefrom to the persons paying or delivering the same and no person from whom the I � Trustees, or any one or more of them, shall receive any money, property or other credit shall be required to see to the i application thereof. No purchaser, mortgagee, lender or other person dealing with the Trustees or with any real or personal property which then is or formerly was trust property shall be bound to ascertain or inquire as to the existence or occurrence of any event or purpose in or for which a sale, mortgage,' pledge or charge is herein authorized or directed, or otherwise as to the purpose of regularity of any of the acts of the Trustees, or any one or more of them, purporting to be done in pursuance of any of the provisions or powers herein contained, or as to the regularity of the resignation or appointment of any Trustee, and any instrument of appointment of a new Trustee or resignation of an old Trustee purporting to be executed by the Trustees, Unit Owners or other persons herein required to execute the same, shall be conclusive evidence in favor of any such purchaser or other person dealing with the Trustees of the matters therein recited relating to such discharge, resignation or appointment or the occasion thereof. s Section 2. No recourse shall at any time be had under or ! upon any note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant, or agreement, whether oral or written, made, issued or executed by the Trustees or by any agent or employee of the Trustees, or by reason of anything done or omitted to be done by or on behalf of them or any of them, against the Trustees individually, or against any such agent or employee, or against any beneficiary, either directly or i indirectly, by legal or equitable proceeding, or by virtue of I ' any suit or otherwise, and all persons extending credit to, contracting with or having any claim against the Trustees, shall look only to the trust property for payment under such contract or claim, or for the payment of any debt, damage, judgment or decree, or of any money that may otherwise become due or payable to them from the Trustees, so that neither the Trustees nor the beneficiaries, present or future, shall be personally liable therefor; provided, however, that nothing herein contained shall be deemed to limit or impair the liability of Unit Owners under provisions of Section 8 of Article III hereof or under provisions of said Chapter 183A. 9 Section 3. Every note, bond, contract, order, instrument, i certificate, undertaking, obligation, covenant or agreement, I ! whether oral or written, made, issued or executed by the Trustees, or by any agent or employee ,of the Trustees, shall be i deemed to have been entered into subject to the terms and jconditions, provisions and restrictions hereof, whether or not express reference shall have been made to this instrument. —29— i Section 4. This Declaration of Trust and any amendments hereto and any certificate herein required to be registered and any other certificate or paper signed by said Trustees or any of them which it may be deemed desirable to record shall be recorded with said Registry of Deeds and such record shall be deemed conclusive evidence of the contents and effectiveness thereof according to the tenor thereof; and all persons dealing I in any manner whatsoever with the Trustees, the trust property ii i or any beneficiary thereunder shall be held to have notice of any alteration or amendment of this Declaration of Trust, or change of Trustee or Trustees, when the same shall be recorded with said Registry of Deeds. Any certificate signed by the Trustees in office at the time, setting forth as facts any I matters affecting the trust, including statements as to who are the beneficiaries, as to what action has been taken by the beneficiaries, and as to matters determining the authority of li the Trustees to do any act, when duly acknowledged and recorded I with said Registry of Deeds shall be conclusive evidence as to the existence of such alleged facts in favor of all third II persons, including the Trustees, acting in reliance thereon. Any certificate executed by any Trustee hereunder, or by a majority of the Trustees hereunder, setting forth the existence i ii of any facts, the existence of which is necessary to authorize i the execution of any instrument or the taking of any action by such Trustee or majority, as the case may be, shall, as to all I persons acting in good faith in reliance thereon be t -30- • I •conclusive evidence of the truth of the statements made in such certificate and of the existence of the facts therein setforth. ARTICLE VII Amendments and Termination l� Section 1. The Trustees, with the consent in writing of iUnit Owners entitled to not less than seventy-five (75%) percent of the beneficial interest hereunder, may at any time and from time to time amend, alter, add to, or change this Declaration of Trust in any mq,nner or to any extent, the Trustees first, however, being duly indemnified to their reasonable satisfaction against outstanding obligations and liabilities; provided always, however, that no such amendment, alteration, addition or change (a) according to the purport of which the percentage of the beneficial interest hereunder of any Unit Owner would be l altered or in any manner or to any extent whatsoever modified or I! affected, so as to be different from the percentage of the individual interest of such Unit Owner in the common areas and facilities as setforth in the Master Deed, or (b) which would render this trust contrary to or inconsistent with any requirements or provisions of said Chapter 183A, shall be valid or effective. Any amendment, alteration, addition or change pursuant to the foregoing provisions of this paragraph shall become effective upon the recording with said Registry of Deeds -31- i of an instrument of amendment, alteration, addition or change, as the case may be, signed, sealed.and acknowledged in the manner required in Massachusetts for the acknowledgement of deeds, by any two (2) Trustees, if there be at least two (2) then in office, setting forth in full the amendment, alteration, addition or change and reciting the consent of the Unit Owners herein required to consent thereto. Such instrument, so executed and recorded, shall be conclusive evidence of the existence of all facts and of compliance with all prerequisites to the validity of such amendment, alteration, addition or change, whether.stated in such instrument or not, upon all questions as to title or affecting the rights of third persons and for all other purposes. Nothing in this paragraph contained shall be construed as making it obligatory upon the Trustees to amend, alter, add to or change the Declaration of Trust upon obtaining the necessary consent as hereinbefore provided. Section 2. The Trust hereby created shall terminate only upon the removal of the Condominium from the provisions of said Chapter 183A in accordance with the procedure therefor setforth in Section 19 of said Chapter. Section 3. Upon the termination of this Trust, the Trustees may, subject to and in accordance with provisions of said Chapter 183A, sell and convert into money the whole of the trust property, or any part or parts thereof, and, after paying or retiring all known liabilities and obligations of the Trustees and providing for indemnity against any other —32— outstanding liabilities and obligations, shall divide the proceeds thereof among, and distribute in kind, at valuations made by them which shall be conclusive, all other property then held by them in trust hereunder, to the Unit Owners according to il their respective percentages of beneficial interest hereunder. II �And in making an sale under this g Y provision the Trustees shill have power to sell by public auction or private contract and to buy in or rescind or vary any contract of sale and to resell without being answerable for loss and, for said purposes, to do all things, including the execution and delivery of instruments, as may be their performance thereof be shown to be in their Judgment necessary or desirable in connection therewith. The powers of sale and all other powers herein given to the Trustees shall continue as to all property at any time remaining in their hands or ownership, even though all times herein fixed for distribution of trust property may have passed. ARTICLE VIII Construction and Interpretation In the construction hereof, whether or not so expressed, words used in the singular or in the plural respectively include both the plural and singular, words denoting males include females, and words denoting persons include individuals, firms, associations, companies (joint stock or otherwise), trusts and corporations unless a contrary intention is to be inferred from —33— 19 or required by the subject matter or context. The cover, title, headings of different parts hereof, the table of contents and the marginal notes, if any, are inserted only for convenience of reference and are not to be taken to be any part hereof or to control or affect the meaning, construction, interpretation or effect hereof. All the trusts, powers and provisions herein i contained shall take effect and be construed according to the ii law of the Commonwealth of Massachusetts. Unless the context otherwise indicates, words defined in said Chapter 183A shall have the same meaning herein. IN WITNESS WHEREOF the aforesaid Trustees have hereunto set their hands and seal on the day and year first hereinabove setforth. ROBERT J. OSTELLINO it I' ROBERT A. OSTELLINO ;i COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. August , 1986 Then personally appeared the above named Robert J. Ostellino and Robert A. Ostellino, Trustees and acknowledged the foregoing instrument to be their free act and deed, before me, �I My commission expires: Notary Public —34—